IDAHO v. UNITED STATES et al.

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262 OCTOBER TERM, 2000
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IDAHO v. UNITED STATES et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 00–189. Argued April 23, 2001—Decided June 18, 2001
This suit involves a dispute between the United States and Idaho over
the ownership of submerged lands underlying portions of Lake Coeur
d’Alene and the St. Joe River. The Coeur d’Alene Tribe once inhabited
vast acreage in and about what is now Idaho, and traditionally used
Lake Coeur d’Alene and the St. Joe River for food, fiber, transportation,
recreation, and cultural activities. In 1873, the Tribe agreed to re-
linquish for compensation all claims to its aboriginal lands outside
the bounds of a specified reservation that included part of the river
and virtually all of the lake. The agreement required congressional
approval, but President Grant set the land aside in an 1873 Execu-
tive Order, which set the reservation’s northern boundary directly
across the lake. An 1883 Government survey indicated that the res-
ervation included submerged lands. When Congress neither ratified
the agreement nor compensated the Tribe, the Tribe petitioned the
Government to make a proper treaty and Congress authorized nego-
tiations. In 1887, the Tribe agreed to cede its rights to all land except
that within the Executive Order reservation, and the Government
promised to compensate the Tribe and agreed to hold the land forever
as Indian land. Still, Congress did not ratify the agreement. In 1888,
the Interior Secretary responded to a Senate enquiry about the reser-
vation’s boundaries, reporting that the reservation appeared to embrace
all but a small fragment of the lake’s navigable waters and that the
St. Joe River flowed through the reservation. Also in 1888, Congress
approved a railroad right-of-way that crossed the reservation’s navi-
gable waters, but directed that the Tribe’s consent be obtained and
that the Tribe be compensated. Responding to a growing desire to
obtain for the public an interest in portions of the reservation, Con-
gress authorized negotiations that produced a new agreement in 1889,
in which the Tribe agreed to cede the reservation’s northern portion,
including two-thirds of the lake, for compensation. In 1890, the Senate
passed a bill ratifying the 1887 and 1889 agreements, but while the bill
was pending in the House, Congress passed the Idaho Statehood Act,
admitting Idaho to the Union. In 1891, Congress ratified the 1887 and
1889 agreements. The United States initiated this action against Idaho
to quiet title in the United States, in trust for the Tribe, to the sub-

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Syllabus
merged lands within the current reservation. The Tribe intervened to
assert its interest in those lands, and Idaho counterclaimed to quiet
title in its favor. The District Court quieted title in the United States
as trustee, and the Tribe as beneficiary, to the bed and banks of the lake
and the river within the reservation. The Ninth Circuit affirmed.
Held: The National Government holds title, in trust for the Tribe, to
lands underlying portions of Lake Coeur d’Alene and the St. Joe River.
Pp. 272–281.
(a) Armed with the strong presumption against defeat of a State’s
title to land under navigable waters, United States v. Alaska, 521 U. S.
1, 34, the Court looks to Congress’s declarations and intent when re-
solving conflicts over submerged lands claimed to be reserved or con-
veyed by the United States before statehood, e. g., id., at 36. The two-
step enquiry used in reservation cases asks whether Congress intended
to include submerged lands within the federal reservation, and, if so,
whether Congress intended to defeat the future State’s title to those
lands. Ibid. Where, as here, the Executive Branch initially reserved
the land, the two-step test is satisfied when an Executive reservation
clearly includes submerged lands, and Congress recognizes that res-
ervation in a way that demonstrates its intent to defeat state title.
Id., at 41–46, 55–61. Here, Idaho has conceded that the Executive
Branch intended, or interpreted, the 1873 Executive Order reservation
to include submerged lands. Pp. 272–274.
(b) Congress recognized the full extent of the Executive Order reser-
vation and it intended to bar passage to Idaho of title to the submerged
lands at issue. Idaho’s concession, in the Ninth Circuit, that the Execu-
tive Order reservation included submerged lands and that Congress
was on notice regarding the scope of the reservation was prudent in
light of the District Court’s findings of facts. That court concluded that
the submerged lands and related water rights had been continuously
important to the Tribe throughout the period prior to congressional
action confirming the reservation and granting Idaho statehood, and
that the Federal Government could only achieve its goals of promoting
settlement in the Tribe’s aboriginal area, avoiding hostilities with the
Tribe, and extinguishing aboriginal title by agreeing to a reservation
that included the submerged lands. That is the background of the 1873
Executive Order’s inclusion of such lands, which in turn were the sub-
ject of the Senate’s 1888 request to the Interior Secretary, whose re-
sponse was consistent with the 1883 survey results. The manner in
which Congress then proceeded to deal with the Tribe shows clearly
that preservation of the reservation’s land, absent contrary agreement
with the Tribe, was central to Congress’s complementary objectives

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264 IDAHO v. UNITED STATES
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of dealing with pressures of white settlement and establishing the res-
ervation by permanent legislation. Congress made it expressly plain
that its object was to obtain tribal interests only by tribal consent.
When it sought to extinguish aboriginal title to lands outside the 1873
reservation and to reduce the reservation’s size, it did so by author-
izing negotiations with the Tribe to cede title for compensation. It also
honored the reservation’s boundaries by requiring that the Tribe be
compensated for the railroad right-of-way. The intent was that any-
thing not consensually ceded by the Tribe would remain for the Tribe’s
benefit, an objective flatly at odds with Idaho’s view that Congress
meant to transfer the balance of submerged lands to the State in what
would have amounted to an act of bad faith accomplished by unspoken
operation of law. Idaho’s position is also at odds with later manifesta-
tions of congressional understanding that statehood had not affected the
submerged lands. Pp. 275–281.
210 F. 3d 1067, affirmed.
Souter, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed
a dissenting opinion, in which Scalia, Kennedy, and Thomas, JJ., joined,
post, p. 281.
Steven W. Strack, Deputy Attorney General of Idaho, ar-
gued the cause for petitioner. With him on the briefs were
Alan G. Lance, Attorney General, and Clive J. Strong, Dep-
uty Attorney General.
Raymond C. Givens argued the cause for respondent
Coeur d’Alene Tribe. With him on the brief were Brian J.
Cleary and Joseph D. Kearney. David C. Frederick argued
the cause for the United States. With him on the brief were
Acting Solicitor General Underwood, Acting Assistant At-
torney General Cruden, Deputy Solicitor General Kneedler,
James C. Kilbourne, and Hank Meshorer.*
*Dennis Molenaar, Jerry K. Boyd, Douglas P. Payne, and Nancy A.
Wolff filed a brief of amici curiae urging reversal for Benewah County
et al.
A brief of amici curiae was filed for the State of California et al. by
Bill Lockyer, Attorney General of California, Richard M. Frank, Chief
Assistant Attorney General, and J. Matthew Rodriquez and Jan S. Ste-
vens, Assistant Attorneys General, and by the Attorneys General for their

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Opinion of the Court
Justice Souter delivered the opinion of the Court.
The United States brought this quiet title action against
the State of Idaho. The question is whether the National
Government holds title, in trust for the Coeur d’Alene Tribe,
to lands underlying portions of Lake Coeur d’Alene and the
St. Joe River. We hold that it does.
I
The Coeur d’Alene Tribe once inhabited more than 3.5 mil-
lion acres in what is now northern Idaho and northeastern
Washington, including the area of Lake Coeur d’Alene and
the St. Joe River. 95 F. Supp. 2d 1094, 1095–1096, 1099–1100
(Idaho 1998).1 Tribal members traditionally used the lake
and its related waterways for food, fiber, transportation,
recreation, and cultural activities. Id., at 1099–1102. The
Tribe depended on submerged lands for everything from
water potatoes harvested from the lake to fish weirs and
traps anchored in riverbeds and banks. Id., at 1100.
Under an 1846 treaty with Great Britain, the United
States acquired title to the region of Lake Coeur d’Alene,
see Treaty in Regard to Limits Westward of the Rocky
Mountains, 9 Stat. 869, subject to the aboriginal right of
possession held by resident tribes, see generally Oneida
Indian Nation of N. Y. v. County of Oneida, 414 U. S. 661,
667 (1974); F. Cohen, Handbook of Federal Indian Law 486–
493 (1982 ed.). In 1867, in the face of immigration into the
Tribe’s aboriginal territory, 95 F. Supp. 2d, at 1102, President
Johnson issued an Executive Order setting aside a reserva-
tion of comparatively modest size, although the Tribe was
respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of
Alaska, Mark Pryor of Arkansas, Wayne Stenehjem of North Dakota,
Hardy Myers of Oregon, Mark W. Barnett of South Dakota, Mark L.
Shurtleff of Utah, William H. Sorrell of Vermont, Christine O. Gregoire
of Washington, and Gay Woodhouse of Wyoming.
1 Petitioner, the State of Idaho, did not challenge the District Court’s
factual findings on appeal. See 210 F. 3d 1067, 1070 (CA9 2000).

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apparently unaware of this action until at least 1871, when
it petitioned the Government to set aside a reservation,
id., at 1102–1103. The Tribe found the 1867 boundaries un-
satisfactory, due in part to their failure to make adequate
provision for fishing and other uses of important waterways.
When the Tribe petitioned the Commissioner of Indian Af-
fairs a second time, it insisted on a reservation that included
key river valleys because “we are not as yet quite up to
living on farming” and “for a while yet we need have some
hunting and fishing.” App. 27.
Following further negotiations, the Tribe in 1873 agreed
to relinquish (for compensation) all claims to its aboriginal
lands outside the bounds of a more substantial reservation
that negotiators for the United States agreed to “set apart
and secure” “for the exclusive use of the Coeur d’Alene In-
dians, and to protect . . . from settlement or occupancy by
other persons.” Id., at 33. The reservation boundaries
described in the agreement covered part of the St. Joe River
(then called the St. Joseph), and all of Lake Coeur d’Alene
except a sliver cut off by the northern boundary. Id., at
33–34; 95 F. Supp. 2d, at 1095–1096.
Although by its own terms the agreement was not bind-
ing without congressional approval, App. 36–37, later in
1873 President Grant issued an Executive Order directing
that the reservation specified in the agreement be “with-
drawn from sale and set apart as a reservation for the Cur
d’Ale` ne Indians.” Exec. Order of Nov. 8, 1873, reprinted in
1 C. Kapler, Indian Affairs: Laws and Treaties 837 (1904).
The 1873 Executive Order set the northern boundary of the
reservation directly across Lake Coeur d’Alene, which, the
District Court found, was contrary “to the usual practice of
meandering a survey line along the mean high water mark.”
95 F. Supp. 2d, at 1108; App. 14, 20 (expert trial testimony).2
2 Although the State did not challenge the District Court’s factual find-
ings below, it claims in its reply brief to us that it was “commonplace”
for reservation boundaries to cross navigable waters. Reply Brief for

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An 1883 Government survey fixed the reservation’s total
area at 598,499.85 acres, which the District Court found nec-
essarily “included submerged lands within the reservation
boundaries.” 95 F. Supp. 2d, at 1108.
As of 1885, Congress had neither ratified the 1873 agree-
ment nor compensated the Tribe. This inaction prompted
the Tribe to petition the Government again, to “make with
us a proper treaty of peace and friendship . . . by which
your petitioners may be properly and fully compensated
for such portion of their lands not now reserved to them;
[and] that their present reserve may be confirmed to them.”
App. 350–351. In response, Congress authorized new nego-
tiations to obtain the Tribe’s agreement to cede land outside
the borders of the 1873 reservation. Act of May 15, 1886,
ch. 333, 24 Stat. 44. In 1887, the Tribe agreed to cede
“all right, title, and claim which they now have, or ever
had, to all lands in said Territories [Washington, Idaho,
and Montana] and elsewhere, except the portion of land
within the boundaries of their present reservation in
the Territory of Idaho, known as the Coeur d’Alene Res-
ervation.” App. 378.
The Government, in return, promised to compensate the
Tribe, and agreed that
“[i]n consideration of the foregoing cession and agree-
ments . . . the Coeur d’Alene Reservation shall be held
forever as Indian land and as homes for the Coeur
d’Alene Indians . . . and no part of said reservation
shall ever be sold, occupied, open to white settlement,
Petitioner 9. Ultimately, this factual dispute is of little consequence;
the District Court found that the boundary and acreage calculations
showed the understanding of the Government and the Tribe that sub-
merged lands were included, 95 F. Supp. 2d, at 1108, and the State con-
ceded on appeal that “[c]ertainly, . . . by 1888, the executive branch had
construed the 1873 Coeur d’Alene Reservation as including submerged
lands.” Opening Brief for Appellant in No. 98–35831 (CA9), p. 17.

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or otherwise disposed of without the consent of the
Indians residing on said reservation.” Id., at 379.
As before, the agreement was not binding on either party
until ratified by Congress. Id., at 382.
In January 1888, not having as yet ratified any agree-
ment with the Tribe, the Senate expressed uncertainty about
the extent of the Tribe’s reservation and adopted a resolu-
tion directing the Secretary of the Interior to “inform the
Senate as to the extent of the present area and boundaries
of the Coeur d’Alene Indian Reservation in the Territory of
Idaho,” and specifically, “whether such area includes any
portion, and if so, about how much of the navigable waters
of Lake Coeur d’Alene, and of Coeur d’Alene and St. Joseph
Rivers.” S. Misc. Doc. No. 36, 50th Cong., 1st Sess., 1 (1888).
The Secretary responded in February 1888 with a report of
the Commissioner of Indian Affairs, stating that “the reser-
vation appears to embrace all the navigable waters of Lake
Coeur d’Alene, except a very small fragment cut off by the
north boundary of the reservation,” and that “[t]he St. Jo-
seph River also flows through the reservation.” S. Exec.
Doc. No. 76, 50th Cong., 1st Sess., 3 (1888). Based largely,
it appears, on this report, Idaho conceded in the Court
of Appeals (as it does here) that the 1873 Executive Order
reservation included submerged lands. See Opening Brief
for Appellant in No. 98–35831 (CA9), p. 17 (“Certainly, the
State concedes that by 1888, the executive branch had con-
strued the 1873 Coeur d’Alene Reservation as including
submerged lands”); Brief for Petitioner 17.
In May 1888, shortly after receiving the Secretary’s re-
port, Congress passed an Act granting a right-of-way to the
Washington and Idaho Railroad Company “for the extension
of its railroad through the lands in Idaho Territory set apart
for the use of the Coeur d’Alene Indians by executive order,
commonly known as the Coeur d’Alene Indian Reservation.”
Act of May 30, 1888, ch. 336, § 1, 25 Stat. 160. Notably, the
Act directed that the Tribe’s consent be obtained and that

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the Tribe alone (no one else being mentioned) be compen-
sated for the right-of-way, a part of which crossed over navi-
gable waters within the reservation. Id., § 3, 25 Stat. 161;
see also Reply Brief for Petitioner 16.
Congress was not prepared to ratify the 1887 agreement,
however, owing to a growing desire to obtain for the public
not only any interest of the Tribe in land outside the 1873
reservation, but certain portions of the reservation itself.
The House Committee on Indian Affairs later recalled that
the 1887 agreement was not promptly ratified for
“sundry reasons, among which was a desire on the part
of the United States to acquire an additional area, to
wit, a certain valuable portion of the reservation spe-
cially dedicated to the exclusive use of said Indians
under an Executive order of 1873, and which portions
of said lands, situate[d] on the northern end of said
reservation, is valuable and necessary to the citizens
of the United States for sundry reasons. It contains
numerous, extensive, and valuable mineral ledges. It
contains large bodies of valuable timber. . . . It con-
tains a magnificent sheet of water, the Coeur d’Alene
Lake . . . .” H. R. Rep. No. 1109, 51st Cong., 1st Sess.,
4 (1890).
But Congress did not simply alter the 1873 boundaries
unilaterally. Instead, the Tribe was understood to be en-
titled beneficially to the reservation as then defined, and the
1889 Indian Appropriations Act included a provision direct-
ing the Secretary of the Interior “to negotiate with the
Coeur d’Alene tribe of Indians,” and, specifically, to nego-
tiate “for the purchase and release by said tribe of such
portions of its reservation not agricultural and valuable
chiefly for minerals and timber as such tribe shall consent
to sell.” Act of Mar. 2, 1889, ch. 412, § 4, 25 Stat. 1002.
Later that year, the Tribe and Government negotiators
reached a new agreement under which the Tribe would cede

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the northern portion of the reservation, including approxi-
mately two-thirds of Lake Coeur d’Alene, in exchange for
$500,000. App. 198; see also 95 F. Supp. 2d, at 1113. The
new boundary line, like the old one, ran across the lake,
and General Simpson, a negotiator for the United States, re-
assured the Tribe that “you still have the St. Joseph River
and the lower part of the lake.” App. 183. And, again,
the agreement was not to be binding on either party until
both it and the 1887 agreement were ratified by Congress.
Id., at 199.
On June 7, 1890, the Senate passed a bill ratifying both
the 1887 and 1889 agreements. S. 2828, 51st Cong., 1st Sess.
(1890); 21 Cong. Rec. 5769–5770 (1890). On June 10, the
Senate bill was referred to the House, where a parallel bill
had already been reported by the House Committee on In-
dian Affairs. H. R. Rep. No. 1109, 51st Cong., 1st Sess.
(1890); see 21 Cong. Rec. 2775 (1890).
On July 3, 1890, while the Senate bill was under consid-
eration by the House Committee on Indian Affairs, Con-
gress passed the Idaho Statehood Act, admitting Idaho into
the Union “on an equal footing with the original States,”
Act of July 3, 1890, ch. 656, 26 Stat. 215. The Statehood Act
“accepted, ratified, and confirmed” the Idaho Constitution,
ibid., which “forever disclaim[ed] all right and title to . . . all
lands lying within [Idaho] owned or held by any Indians or
Indian tribes” and provided that “until the title thereto shall
have been extinguished by the United States, the same shall
be subject to the disposition of the United States, and said
Indian lands shall remain under the absolute jurisdiction and
control of the congress of the United States,” Idaho Const.,
Art. XXI, § 19 (1890).
A little over a month later, on August 19, 1890, the House
Committee on Indian Affairs reported that the Senate bill
ratifying the 1887 and 1889 agreements was identical to
the House bill that it had already recommended. H. R. Rep.
No. 2988, 51st Cong., 1st Sess. (1890). On March 3, 1891,
Congress “accepted, ratified, and confirmed” both the 1887

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and 1889 agreements with the Tribe. Act of Mar. 3, 1891,
ch. 543, §§ 19, 20, 26 Stat. 1027, 1029. The Act also directed
the Secretary of the Interior to convey to one Frederick Post
a “portion of [the] reservation,” id., at 1031, that the Tribe
had purported to sell to Post in 1871.3 The property, located
on the Spokane River and known as Post Falls, was de-
scribed as “all three of the river channels and islands, with
enough land on the north and south shores for water-power
and improvements.” Ibid.
In 1894, Congress approved yet another agreement with
the Tribe, this time for the cession of a lakeside townsite
called Harrison, within the boundary of the ratified reser-
vation. Act of Aug. 15, 1894, ch. 290, 28 Stat. 322, agreement
reprinted in App. 389; see also 95 F. Supp. 2d, at 1117. The
agreement with the Tribe described the cession as cover-
ing “all the land” embraced within a tract that included a
portion of the lake. App. 392. Like the earlier railroad
cession, this one was subject to compensation to the Tribe
and no one else.
The United States, acting in its own capacity and as
trustee for the Tribe, initiated this action against the State
of Idaho to quiet title (in the United States, to be held for
the use and benefit of the Tribe) to the submerged lands
within the exterior boundaries of the Tribe’s current res-
ervation, which encompass the lower third of Lake Coeur
d’Alene and part of the St. Joe River.4 The Tribe inter-
3 See generally, e. g., Oneida Indian Nation of N. Y. v. County of
Oneida, 414 U. S. 661, 667–668 (1974) (under common law and various
Nonintercourse Acts, Indian title can only be extinguished with federal
consent).
4 Because this action was brought by the United States, it does not
implicate the Eleventh Amendment bar raised when the Tribe pressed
its own claim to the submerged lands in Idaho v. Coeur d’Alene Tribe
of Idaho, 521 U. S. 261 (1997). See Arizona v. California, 460 U. S. 605,
614 (1983).
The United States’s complaint was apparently motivated by Idaho’s
issuance of permits for the construction of “docks, piers, floats, pilings,
breakwaters, boat ramps and other such aids to navigation within the

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vened to assert its interest in the submerged lands, and
Idaho counterclaimed, seeking to quiet title in its own favor.
Ibid. Following a 9-day trial, the District Court quieted
title “in favor of the United States, as trustee, and the Coeur
d’Alene Tribe of Idaho, as the beneficially interested party
of the trusteeship, to the bed and banks of the Coeur d’Alene
Lake and the St. Joe River lying within the current bound-
aries of the Coeur d’Alene Indian Reservation.” 95 F. Supp.
2d, at 1117. The Court of Appeals for the Ninth Circuit
affirmed. 210 F. 3d 1067 (2000). We granted certiorari, 531
U. S. 1050 (2000), and we now affirm.
II
Due to the public importance of navigable waterways,
ownership of the land underlying such waters is “strongly
identified with the sovereign power of government.” Mon-
tana v. United States, 450 U. S. 544, 552 (1981). See gen-
erally Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261,
284 (1997); United States v. Alaska, 521 U. S. 1, 5 (1997). In
order to allow new States to enter the Union on an “equal
footing” with the original States with regard to this im-
portant interest, “the United States early adopted and con-
stantly has adhered to the policy of regarding lands under
navigable waters in acquired territory . . . as held for the
ultimate benefit of future States.” United States v. Holt
State Bank, 270 U. S. 49, 55 (1926); see also Shively v.
Bowlby, 152 U. S. 1, 48–50 (1894). Therefore, in contrast
to the law governing surface land held by the United States,
see Scott v. Lattig, 227 U. S. 229, 244 (1913), the default rule
is that title to land under navigable waters passes from the
United States to a newly admitted State. Shively, supra,
at 26–50. Specifically, although Congress has the power be-
fore statehood to convey land beneath navigable waters,
and to reserve such land for the United States, “ ‘[a] court
southern one-third of Coeur d’Alene Lake.” Complaint in CIV94–0328–
N–EJL (D. Idaho), pp. 6–7.

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deciding a question of title to the bed of navigable water
must . . . begin with a strong presumption’ against defeat
of a State’s title.” Alaska, supra, at 34 (quoting Montana,
supra, at 552).
Armed with that presumption, we have looked to Con-
gress’s declarations and intent when we have had to resolve
conflicts over submerged lands claimed to have been re-
served or conveyed by the United States before statehood.
Alaska, supra, at 36 (“Whether title to submerged lands
rests with a State, of course, is ultimately a matter of federal
intent”); Utah Div. of State Lands v. United States, 482 U. S.
193, 201–202 (1987); Montana, supra, at 550–557; Holt State
Bank, supra, at 57–59; Alaska Pacific Fisheries v. United
States, 248 U. S. 78, 87–90 (1918); Shively, supra, at 48–51.
The issue of congressional intent is refined somewhat
when submerged lands are located within a tract that the
National Government has dealt with in some special way
before statehood, as by reserving lands for a particular
national purpose such as a wildlife refuge or, as here, an
Indian reservation. Because reserving submerged lands
does not necessarily imply the intent “to defeat a future
State’s title to the land,” Utah Div. of State Lands, supra,
at 202, we undertake a two-step enquiry in reservation cases.
We ask whether Congress intended to include land under
navigable waters within the federal reservation and, if so,
whether Congress intended to defeat the future State’s title
to the submerged lands. Alaska, supra, at 36; Utah, supra,
at 202.
Our most recent case of this sort, United States v. Alaska,
supra, addressed two parcels of land initially reserved not
by Congress but, as here, by the Executive Branch. We
explained that the two-step test of congressional intent is
satisfied when an Executive reservation clearly includes
submerged lands, and Congress recognizes the reservation
in a way that demonstrates an intent to defeat state title.
Id., at 41–46, 55–61. We considered whether Congress was

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on notice that the Executive reservation included submerged
lands, see id., at 42, 45, 56, and whether the purpose of the
reservation would have been compromised if the submerged
lands had passed to the State, id., at 42–43, 45–46, 58.
Where the purpose would have been undermined, we ex-
plained, “[i]t is simply not plausible that the United States
sought to reserve only the upland portions of the area,” id.,
at 39–40.
Here, Idaho has conceded that “the executive branch had
intended, or by 1888 had interpreted, the 1873 Executive
Order Reservation to include submerged lands.” Brief for
Petitioner 17. The concession is a sound one. A right to
control the lakebed and adjacent waters was traditionally
important to the Tribe, which emphasized in its petition
to the Government that it continued to depend on fishing.
Cf. Montana, supra, at 556 (finding no intent to include sub-
merged lands within a reservation where the tribe did not
depend on fishing or use of navigable water). The District
Court found that the acreage determination of the reserved
area in 1883 necessarily included the area of the lakebed
within the unusual boundary line crossing the lake from east
to west. Cf. Alaska, supra, at 39 (concluding that a bound-
ary following the ocean side of offshore islands necessarily
embraced submerged lands shoreward of the islands). In
light of those findings and Idaho’s concession, the parties
here concentrate on the second question, of Congress’s intent
to defeat Idaho’s title to the submerged lands.5
5 The District Court and Court of Appeals accepted the United States’s
position that it had reserved the submerged lands, and that Congress
intended that reservation to defeat Idaho’s title. They did not reach
the Tribe’s alternative theory that, notwithstanding the scope of any
reservation, the Tribe retained aboriginal title to the submerged lands,
which cannot be extinguished without explicit action by Congress, see
Oneida Indian Nation, 414 U. S., at 667–668; cf. United States v. Winans,
198 U. S. 371, 381 (1905) (explaining that a treaty ceding some aboriginal
lands to the United States and setting apart other lands as a reserva-
tion “was not a grant of rights to the Indians, but a grant of rights from

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In the Court of Appeals, Idaho also conceded one point
covered in this second part of the enquiry. It agreed that
after the Secretary of the Interior’s 1888 report that the res-
ervation embraced nearly “all the navigable water of Lake
Coeur d’Alene,” S. Exec. Doc. No. 76, 50th Cong., 1st Sess.,
at 3, Congress was on notice that the Executive Order reser-
vation included submerged lands. Opening Brief for Appel-
lant in No. 98–35831 (CA9), at 11 (“[Congress was] informed
that the Coeur d’Alene Reservation embraced submerged
lands”). Again, Idaho’s concession was prudent in light of
the District Court’s findings of facts. 95 F. Supp. 2d, at 1114
(“The evidence shows that prior to Idaho’s statehood, Con-
gress was on notice that the Executive Order of 1873 re-
served for the benefit of the Tribe the submerged lands
within the boundaries of the Coeur d’Alene Reservation”).
The District Court did not merely impute to Congress
knowledge of the land survey, but also explained how the
submerged lands and related water rights had been con-
tinuously important to the Tribe throughout the period
prior to congressional action confirming the reservation and
granting Idaho statehood. And the District Court made the
following findings about the period preceding negotiations
authorized by Congress:
“The facts demonstrate that an influx of non-Indians into
the Tribe’s aboriginal territory prompted the Federal
Government to negotiate with the Coeur d’Alenes in
an attempt to confine the Tribe to a reservation and
to obtain the Tribe’s release of its aboriginal lands for
settlement. Before it would agree to these conditions,
however, the Tribe demanded an enlarged reservation
that included the Lake and rivers. Thus, the Federal
Government could only achieve its goals of promoting
them—a reservation of those not granted”). The Tribe does not press its
unextinguished-aboriginal-title argument here. See Brief for Respondent
Coeur d’Alene Tribe 25, n. 12.

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276 IDAHO v. UNITED STATES
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settlement, avoiding hostilities and extinguishing ab-
original title by agreeing to a reservation that included
the submerged lands.” Id., at 1107.6
This, in summary, was the background for the 1873 Execu-
tive Order’s inclusion of submerged lands, which in turn
were the subject of the 1888 request by the Senate to the
Secretary of the Interior for advice about the Tribe’s rights
over the “navigable waters of Lake Coeur d’Alene and the
Coeur d’Alene and St. Joseph Rivers,” S. Misc. Doc. No. 36,
50th Cong., 1st Sess., at 1. As noted, the Secretary an-
swered in the affirmative, S. Exec. Doc. No. 76, 50th Cong.,
1st Sess., at 3, consistently with the survey indicating that
the submerged lands were within the reservation. Thus,
the District Court remarked that it would be difficult to
imagine circumstances that could have made it more plain
to Congress that submerged lands were within the reser-
vation. 95 F. Supp. 2d, at 1114.
The manner in which Congress then proceeded to deal
with the Tribe shows clearly that preservation of the land
within the reservation, absent contrary agreement with the
Tribe, was central to Congress’s complementary objectives
of dealing with pressures of white settlement and estab-
lishing the reservation by permanent legislation. The Tribe
had shown its readiness to fight to preserve its land rights
when in 1858 it defeated a force of the United States military,
which it misunderstood as intending to take aboriginal lands.
See H. R. Rep. No. 1109, 51st Cong., 1st Sess., at 2–3. The
concern with hostility arose again in 1873 before the reser-
vation boundaries were established, when a surveyor on the
6 See also Commissioner of Indian Affairs, Annual Report (1873), re-
printed in App. 45 (explaining that Tribe was dissatisfied with a previous
reservation and that the 1873 agreement was required “[f]or the pur-
pose of extinguishing [the Tribe’s] claim to all the tract of country claimed
by them”). See generally Montana v. United States, 450 U. S. 544, 556
(1981) (creation of Indian reservation is appropriate public purpose justify-
ing defeat of state title to submerged lands).

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Opinion of the Court
scene had warned the Surveyor General that “[s]hould the
fisheries be excluded there will in my opinion be trouble with
these Indians.” App. 30.
Hence, although the goal of extinguishing aboriginal title
could have been achieved by congressional fiat, see Tee-Hit-
Ton Indians v. United States, 348 U. S. 272, 279–282 (1955),
and Congress was free to define the reservation boundaries
however it saw fit, the goal of avoiding hostility seemingly
could not have been attained without the agreement of the
Tribe. Congress in any event made it expressly plain that
its object was to obtain tribal interests only by tribal con-
sent. When in 1886 Congress took steps toward extinguish-
ing aboriginal title to all lands outside the 1873 boundaries,
it did so by authorizing negotiation of agreements ceding
title for compensation. Soon after that, when Congress de-
cided to seek a reduction in the size of the 1873 reserva-
tion itself, the Secretary of the Interior advised the Senate
against fiddling with the scope of the reservation without
the Tribe’s agreement. The report of February 1888 like-
wise urged that any move to diminish the reservation
“should be done, if done at all, with the full and free consent
of the Indians, and they should, of course, receive proper
compensation for any land so taken.” App. 129. Accord-
ingly, after receiving the Secretary’s report, Congress under-
took in the 1889 Act to authorize negotiation with the Tribe
for the consensual, compensated cession of such portions of
the Tribe’s reservation “as such tribe shall consent to sell,”
Act of Mar. 2, 1889, ch. 412, § 4, 25 Stat. 1002. In the mean-
time it honored the reservation’s recently clarified bound-
aries by requiring that the Tribe be compensated for the
Washington and Idaho Railroad Company right-of-way, Act
of May 30, 1888, ch. 336, § 1, 25 Stat. 160.
The facts, including the provisions of Acts of Congress in
1886, 1888, and 1889, thus demonstrate that Congress un-
derstood its objective as turning on the Tribe’s agreement
to the abrogation of any land claim it might have and to any

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278 IDAHO v. UNITED STATES
Opinion of the Court
reduction of the 1873 reservation’s boundaries. The explicit
statutory provisions requiring agreement of the Tribe were
unchanged right through to the point of Congress’s final 1891
ratification of the reservation, in an Act that of course con-
tained no cession by the Tribe of submerged lands within
the reservation’s outer boundaries. Nor, it should be added,
is there any hint in the evidence that delay in final passage
of the ratifying Act was meant to pull a fast one by allowing
the reservation’s submerged lands to pass to Idaho under a
legal presumption, by virtue of the Statehood Act approved
eight months before Congress took final action on the res-
ervation. There is no evidence that the Act confirming the
reservation was delayed for any reason but comparison of
the respective House and Senate bills, to assure that they
were identical prior to the House’s passage of the Senate
version.7
The record thus answers the State’s argument that, be-
cause the 1889 Act indicates that Congress sought to obtain
portions of the reservation “valuable chiefly for minerals
and timber,” Congress was not necessarily thinking one
thing or another about the balance of the reservation land.
Reply Brief for Petitioner 6–7; see also Tr. of Oral Arg.
12–13. The argument simply ignores the evidence that Con-
gress did know that the reservation included submerged
lands, and that it authorized the reservation’s modification
solely by agreement. The intent, in other words, was that
anything not consensually ceded by the Tribe would re-
main for the Tribe’s benefit, an objective flatly at odds with
Idaho’s view that Congress meant to transfer the balance
7 Given the preceding discussion of, among other things, the earlier
congressional Acts, it should go without saying that this reference to
the fact that the Senate passed the ratification Act before statehood is
not intended to suggest that the Senate action constituted the enactment
of an expression of intent on behalf of the whole Congress, let alone that
it was sufficient of itself to defeat Idaho’s title to the submerged lands.
But cf. post, at 285 (Rehnquist, C. J., dissenting).

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of submerged lands to the State in what would have
amounted to an act of bad faith accomplished by unspoken
operation of law. Indeed, the implausibility of the State’s
current position is underscored by the fact that it made a
contrary argument in the Court of Appeals, where it em-
phasized the District Court’s finding that the 1889 Act was
an authorization “to negotiate with the Tribe for a release of
the submerged lands,” and recognized that “[Congress was]
informed that the Coeur d’Alene Reservation embraced
submerged lands.” Opening Brief for Appellant in No. 98–
35831 (CA9), at 11, 31.
Idaho’s position is at odds not only with evidence of
congressional intent before statehood, but also with later
congressional understanding that statehood had not affected
the submerged lands in question. Eight months after pass-
ing the Statehood Act, Congress ratified the 1887 and 1889
agreements in their entireties (including language in the
1887 agreement that “the Coeur d’Alene Reservation shall
be held forever as Indian land”), with no signal that some
of the land over which the parties to those agreements had
negotiated had passed in the interim to Idaho. The ratifi-
cation Act suggested in a further way Congress’s under-
standing that the 1873 reservation’s submerged lands had
not passed to the State, by including a provision confirm-
ing the Tribe’s sale of river channels to Frederick Post.
Confirmation would have been beyond Congress’s power if
title to the submerged riverbed had already passed to the
State.8 Finally, the Act of Congress ceding the portion of
8 The State says that the conveyance to Post included land that was
outside the boundary of the 1873 reservation. Reply Brief for Petitioner
18. That merely suggests the possibility that Congress intended to de-
feat the State’s title to even more territory than the United States is
claiming here.
The State also hypothesizes that the relevant portions of the Spokane
River may not have been considered navigable at the time of the convey-
ance, ibid., in which case the equal footing doctrine would not apply and
the conveyance would say nothing about Congress’s intent with regard to

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280 IDAHO v. UNITED STATES
Opinion of the Court
reservation land for the townsite of Harrison confirms Con-
gress’s understanding that the lakebed within the reser-
vation’s boundaries was part of the reservation. Only three
years after the Act confirming the reservation, the town-
site cession was treated just as the right-of-way for the rail-
road had been treated before statehood. The Tribe (and no
one else) was compensated for a cession whose bounds sug-
gested inclusion of submerged lands; the boundary lines did
not stop at the water’s edge and meander the entire shore,
but continued into the area of the lake to encompass sub-
merged territory that the National Government simply could
not have conveyed if it had passed to Idaho at the time of
statehood.9
In sum, Congress undertook to negotiate with the Coeur
d’Alene Tribe for reduction in the territory of an Execu-
tive Order reservation that Idaho concedes included the sub-
merged lands at issue here. Congress was aware that the
submerged lands were included and clearly intended to re-
define the area of the reservation that covered them only
by consensual transfer, in exchange for the guarantee that
the Tribe would retain the remainder. There is no indica-
submerged lands underlying navigable waters. We need not resolve this
factual question, which was not addressed below. Suffice it to say that
Congress’s actions in 1891 were consistent with an understanding that
the State did not have title to the riverbeds conveyed to Post, which,
along with the later Harrison cession of part of the concededly navi-
gable lake, is consistent with an understanding that no submerged lands
within the reservation’s stated boundaries had passed to Idaho.
9 Here, we agree with the dissent, post, at 284, that Congress cannot,
after statehood, reserve or convey submerged lands that “ha[ve] already
been bestowed” upon a State. See Shively v. Bowlby, 152 U. S. 1, 26–28
(1894) (citing Lessee of Pollard v. Hagan, 3 How. 212 (1845)). Our point
in mentioning Congress’s actions after statehood is merely to confirm
what Congress’s prestatehood actions already make clear: that the lands
at issue here were not bestowed upon Idaho at statehood, because Con-
gress intended that they remain tribal reservation lands barring agree-
ment to the contrary.

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Rehnquist, C. J., dissenting
tion that Congress ever modified its objective of negotiated
consensual transfer, which would have been defeated if Con-
gress had let parts of the reservation pass to the State before
the agreements with the Tribe were final. Any imputation
to Congress either of bad faith or of secrecy in dropping its
express objective of consensual dealing with the Tribe is
at odds with the evidence. We therefore think the nego-
tiating history, not to mention subsequent events, “ma[k]e
[it] very plain,” Holt State Bank, 270 U. S., at 55, that Con-
gress recognized the full extent of the Executive Order
reservation lying within the stated boundaries it ultimately
confirmed, and intended to bar passage to Idaho of title to
the submerged lands at issue here.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Chief Justice Rehnquist, with whom Justice Scalia,
Justice Kennedy, and Justice Thomas join, dissenting.
The Court makes out a plausible case for the proposition
that, on the day Idaho was admitted to the Union, the Ex-
ecutive Branch of the Federal Government had intended to
retain in trust for the Coeur d’Alene Indian Tribe the sub-
merged lands under a portion of Lake Coeur d’Alene. But
the existence of such intent on the part of the Executive
Branch is simply not enough to defeat an incoming State’s
title to submerged lands within its borders. Decisions of
this Court going back more than 150 years establish this
proposition beyond a shadow of a doubt.
“[T]he ownership of land under navigable waters,” it
bears repeating, “is an incident of sovereignty.” Montana
v. United States, 450 U. S. 544, 551 (1981). Recognizing this
important relationship, this Court “announced the principle
that the United States held the lands under navigable waters
in the Territories ‘in trust’ for the future States that would

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282 IDAHO v. UNITED STATES
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be created.” Utah Div. of State Lands v. United States, 482
U. S. 193, 196 (1987) (quoting Lessee of Pollard v. Hagan,
3 How. 212, 230 (1845)). That duty may not lightly be dis-
regarded, and, as the Court rightly observes, our inquiry
“begin[s] with a strong presumption against defeat of a
State’s title.” Ante, at 273 (internal quotation marks and
citations omitted). Accordingly, “disposals [of submerged
lands] by the United States during the territorial period . . .
should not be regarded as intended unless the intention was
definitely declared or otherwise made very plain.” United
States v. Holt State Bank, 270 U. S. 49, 55 (1926); see also
Montana, supra, at 552 (“[The Court] must not infer such
a conveyance unless the intention was definitely declared
or otherwise made very plain, or was rendered in clear and
especial words, or unless the claim confirmed in terms em-
braces the land under the waters of the stream” (internal
quotation marks and citations omitted)).
The Court makes three critical mistakes in its application
of the equal footing doctrine here—errors that significantly
dilute the doctrine. First and foremost, the Court miscon-
ceives the scope of historical events directly relevant to the
question whether Congress had, by July 3, 1890, acted to
withhold title to submerged lands from the entering State
of Idaho. At the very moment that Idaho entered the Union
“on an equal footing with the original States,” Act of July 3,
1890, ch. 656, 26 Stat. 215, Congress and the President vested
in Idaho the accoutrements of sovereignty, including title
to submerged lands. It is therefore improper for the Court
to look to events after Idaho’s admission in order to discern
whether Congress had months or years previously intended
to divest the entering State of its submerged lands. Indeed,
I am aware of no case applying the equal footing doctrine
to determine title to submerged lands in which this Court
has looked beyond the moment of statehood for evidence of
federal intent.

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283 Cite as: 533 U. S. 262 (2001)
Rehnquist, C. J., dissenting
Our decision in United States v. Alaska, 521 U. S. 1 (1997),
is particularly illustrative of the timeframe relevant to our
inquiry. That case concerned in part Alaska’s assumption
of title to submerged lands within the National Petroleum
Reserve-Alaska (Reserve) and the Arctic National Wildlife
Refuge (Refuge). See id., at 4. In stark contrast to today’s
decision, the Court in its lengthy discussion in Alaska re-
sisted entirely the temptation to delve into the treatment
of the lands in question in the months and years following
Alaska’s admission to the Union in 1959. And the invita-
tion to do so hardly could have been more obvious with
respect to the Refuge, which had been “set apart” as a wild-
life reservation but had not yet been formally approved by
the Secretary of the Interior. Id., at 46–47. “This applica-
tion,” the Court observed, “was still pending in July 1958,
when Congress passed the Alaska Statehood Act, and in
January 1959, when Alaska was formally admitted to the
Union.” Id., at 46. Although the Court noted that the
application was approved several months after Alaska’s
admission, the Court considered the pending application as
relevant only insofar as it put Congress on notice of the
action. See id., at 56. The Alaska Court did not give—
contrary to the Court’s reasoning in the present case—any
import to the fact that the application ultimately was ap-
proved. Indeed, Alaska’s focus on the instant of statehood
as the crucial moment of inquiry could hardly be more clear.
See, e. g., id., at 42 (“The conclusion that Congress was aware
when it passed the Alaska Statehood Act that the Reserve
encompassed submerged lands is reinforced by other legisla-
tion, enacted just before Alaska’s admission to the Union,
granting certain offshore lands to the Territory of Alaska”);
id., at 55 (“We now consider whether, prior to Alaska’s ad-
mission to the Union, the United States defeated the future
State’s title to the submerged lands included within the
proposed Range” (emphases added)). Other cases indicate

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284 IDAHO v. UNITED STATES
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a similar emphasis. See, e. g., Utah Div. of State Lands,
supra, at 195; Montana, 450 U. S., at 551.1
Accordingly, insofar as the submerged lands at issue here
are concerned, it is of no moment that Congress ultimately
ratified the 1887 and 1889 negotiations. See ante, at 279.
Well before it took such action, Congress had given its assent
to Idaho’s entry into the Union as a sovereign State and
thereby joined with the Executive to extinguish the Federal
Government’s right to withhold title to submerged lands.
It follows that Congress’ acceptance of the fact that “the
Coeur d’Alene Reservation shall be held forever as Indian
land,” ibid., does nothing to explain whether submerged
lands were within that reservation at the time of—much less
eight months after—Idaho’s admission. By the same token,
our inquiry is not illuminated by Congress’ attempt in 1891
to affirm Chief Seltice’s purported conveyance of certain
lands to Frederick Post, see ante, at 271, 279, or by Con-
gress’ approval in 1894 of the so-called “Harrison cession,”
see ante, at 279–280. Simply put, the consequences of ad-
mission are instantaneous, and it ignores the uniquely sover-
eign character of that event for the Court to suggest that
subsequent events somehow can diminish what has already
been bestowed.
Second, all agree (at least in theory) that the question be-
fore us is “whether Congress intended to include land under
navigable waters within the federal reservation and, if so,
whether Congress intended to defeat the future State’s title
to the submerged lands,” ante, at 273 (emphasis added).
But the Court proceeds to determine this “intent” by consid-
ering what obviously are not Acts of Congress. Congress
1 The Court of Appeals stated that “we are aware of no rule forbidding
consideration of such [post-statehood] events. Indeed, the case law may
suggest the contrary. See Alaska Pacific Fisheries v. United States,
248 U. S. 78, 89–90 (1918).” 210 F. 3d 1067, 1079, n. 17 (CA9 2000). This
citation is puzzling indeed, for Alaska was not admitted to the Union until
some 40 years after the Court’s decision in Alaska Pacific Fisheries.

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Rehnquist, C. J., dissenting
itself did authorize negotiations with the Tribe in 1886 and
1889, but those Acts expressly provided that any resulting
agreements were not binding “until ratified by Congress.”
Act of May 15, 1886, 24 Stat. 44, App. 51; Act of Mar. 2, 1889,
25 Stat. 1002, App. 144. And it is undisputed that ratifi-
cation did not occur before Idaho gained admission. The
Court, however, is willing to divine congressional intent
to withhold submerged lands from the State from what
are best described as inchoate prestatehood proceedings.
In the Court’s view it is sufficient that one House of Con-
gress had acted to approve the agreements and that the
other was in the process of considering similar legislation.
See ante, at 278. The Court thus speaks of the “final” rati-
fication of the 1887 and 1889 negotiations as if the official
approval of both Houses of Congress was but a mere formal-
ity. Ibid. But see U. S. Const., Art. I, § 7, cl. 2. But the
indisputable fact remains that, as of July 3, 1890, “Congress”
had passed the Idaho Statehood Act but had not ratified the
1887 and 1889 agreements.
Nor do our prior decisions in this area support the Court’s
decision to wander so far afield. In Alaska, we evaluated
the impact of an express provision in the Alaska Statehood
Act, Pub. L. 85–508, 72 Stat. 347, reserving certain lands for
the United States. 521 U. S., at 41–42. There the evidence
that “Congress expressed a clear intent to defeat state title”
to submerged lands came in the form of a duly passed fed-
eral statute rather than as inferences drawn from preludes
to future congressional Acts. Id., at 41. Indeed, that
Statehood Act abounds in specificity, in § 11(b) directly iden-
tifying the Reserve, and in § 6(e) defining other reserved
lands in some detail.2 So, too, in Utah Division of State
2 Again, the Court’s reliance on language contained in the Idaho State-
hood Act affirming the Idaho Constitution is unavailing. See ante, at 270.
Clauses indicating that the entering State “forever disclaims all right
and title to . . . all lands . . . owned or held by any Indians or Indian
tribes” were boilerplate formulations at the time, and the inclusion of

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286 IDAHO v. UNITED STATES
Rehnquist, C. J., dissenting
Lands we evaluated prestatehood federal statutes without
reference to inchoate proceedings lacking the force of law.
482 U. S., at 198–200 (discussing the impact on Utah’s claim
to certain submerged lands of the Sundry Appropriations
Act of 1888, 25 Stat. 505, and the Sundry Appropriations Act
of 1890, ch. 837, 26 Stat. 371). Cf. Montana, supra, at 550–
555 (considering whether certain treaties vested property
rights in the Crow Indians). We thus wisely have not relied
on this sort of evidence in the past, and it is unfortunate that
we embark upon that route today.
Third, despite the critical relationship between submerged
lands and sovereignty, the Court makes the unwarranted
assumption that any use granted with respect to navigable
waters must necessarily include reserving title to the sub-
merged lands below them. As the Court previously has ex-
plained, the purpose underlying a reservation of territorial
lands is often probative of federal intent. See, e. g., Alaska,
521 U. S., at 39. Even accepting the District Court’s con-
clusions regarding the Tribe’s dietary habits, and further
accepting this Court’s inference that Congress was con-
cerned with the Tribe’s access to navigable waters,3 it does
this language hardly compares to the precision employed in the Alaska
Statehood Act. Indeed, every State admitted between the years 1889 and
1912 entered with such a disclaimer. See N. D. Const., Art. 16, § 2 (1889);
S. D. Const., Art. XXII, § 18 (1889); Mont. Const., Ordinance I (1889);
Wash. Const., Art. XXVI, § 2 (1889); Wyo. Const., Ordinance § 3 (1889);
Utah Const., Art. III (1894); Okla. Const., Art. I, § 3 (1906); N. M. Const.,
Art. XXI, § 2 (1910); Ariz. Const., Art. XX, par. 4 (1910). Tellingly, in
each of these Constitutions save Oklahoma’s, the relevant language is
identical to that in the Idaho Constitution. This disclaimer, in any event,
simply begs the question whether submerged lands were in fact “owned
or held” by the Coeur d’Alene Tribe upon Idaho’s admission.
3 This inference may not be justified. Although Idaho apparently has
conceded that the 1873 Executive Order included submerged lands within
the reservation, that fact hardly confirms that Congress made a similar
statement in simply authorizing negotiations with the Tribe. United
States v. Alaska, 521 U. S. 1 (1997), moreover, indicates that it is at best

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Rehnquist, C. J., dissenting
not necessarily follow that Congress intended to reserve
title in submerged lands by authorizing negotiations lead-
ing to the cession of portions of the reservation established
by the 1873 Executive Order.
It is perfectly consistent with the assumption that Con-
gress wanted to preserve the Coeur d’Alene Indians’ way
of life to conclude that, if Congress meant to grant the
Tribe any interest in Lake Coeur d’Alene, it was more likely
a right to fish and travel the waters rather than withhold-
ing for the Tribe’s benefit perpetual title in the underlying
lands. See Montana, 450 U. S., at 554 ([Although the treaty]
gave the Crow Indians the sole right to use and occupy the
reserved land, and, implicitly, the power to exclude others
from it, the respondents’ reliance on that provision simply
begs the question of the precise extent of the conveyed lands
to which this exclusivity attaches”); see also ibid. (“The mere
fact that the bed of a navigable water lies within the bound-
aries described in the treaty does not make the riverbed
part of the conveyed land, especially when there is no ex-
press reference to the riverbed that might overcome the
presumption against its conveyance”).
For this reason, Congress’ decision in 1888 to grant a
right-of-way to the Washington and Idaho Railroad Com-
pany across a part of the Coeur d’Alene Reservation is not
clear evidence of Congress’ intent with respect to sub-
merged lands. All but a miniscule portion of the right-
of-way passes along surface lands, and it crosses the lake
only at one of its narrowest points. There is no mention
of submerged lands in the authorizing resolution, and it
seems obvious that Congress required the company to pay
an open question whether Executive action alone is sufficient to withhold
title to submerged lands. Id., at 43–45; cf. U. S. Const., Art. IV, § 3, cl. 2
(“The Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging
to the United States” (emphasis added)). Thus, the majority rests far too
much weight on Idaho’s concession regarding the 1873 reservation.

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288 IDAHO v. UNITED STATES
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compensation to the Tribe because of the significant impact
the railroad would have upon surface lands:
“[T]he right of way hereby granted to said company
shall be seventy-five feet in width on each side of
the central line of said railroad as aforesaid[;] and said
company shall also have the right to take from said
lands adjacent to the line of said road material, stone,
earth, and timber necessary for the construction of said
railroad; also, ground adjacent to such right of way
for station-buildings, depots, machine-shops, side-tracks,
turnouts, and water-stations, not to exceed in amount
three hundred feet in width and three thousand feet in
length for each station, to the extent one station for each
ten miles of road.” App. 138.
Thus, I do not think it just to infer any intent regarding
submerged lands from Congress’ requirement of compen-
sation for what was to be primarily an intrusion—and a
significant one at that—upon surface lands.
In sum, the evidence of congressional intent properly
before the Court today fails to rise to anywhere near the
level of certainty our cases require. Congress’ desire to
divest an entering State of its sovereign interest in sub-
merged lands must be “definitely declared or otherwise made
very plain,” Montana, supra, at 552. That standard has
not been met here.

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Syllabus
IMMIGRATION AND NATURALIZATION SERVICE
v. ST. CYR
certiorari to the united states court of appeals for
the second circuit
No. 00–767. Argued April 24, 2001—Decided June 25, 2001
Before the effective dates of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), § 212(c) of the Immi-
gration and Nationality Act of 1952 was interpreted to give the Attor-
ney General broad discretion to waive deportation of resident aliens.
As relevant here, the large class of aliens depending on § 212(c) relief
was reduced in 1996 by § 401 of AEDPA, which identified a broad set
of offenses for which convictions would preclude such relief; and by
IIRIRA, which repealed § 212(c) and replaced it with a new section
excluding from the class anyone “convicted of an aggravated felony,”
8 U. S. C. § 1229b(a)(3). Respondent St. Cyr, a lawful permanent United
States resident, pleaded guilty to a criminal charge that made him
deportable. He would have been eligible for a waiver of deportation
under the immigration law in effect when he was convicted, but his
removal proceedings were commenced after AEDPA’s and IIRIRA’s
effective dates. The Attorney General claims that those Acts withdrew
his authority to grant St. Cyr a waiver. The Federal District Court
accepted St. Cyr’s habeas corpus application and agreed that the new
restrictions do not apply to removal proceedings brought against an
alien who pleaded guilty to a deportable crime before their enactment.
The Second Circuit affirmed.
Held:
1. Courts have jurisdiction under 28 U. S. C. § 2241 to decide the legal
issue raised by St. Cyr’s habeas petition. Pp. 298–314.
(a) To prevail on its claim that AEDPA and IIRIRA stripped fed-
eral courts of jurisdiction to decide a pure question of law, as in this
case, petitioner Immigration and Naturalization Service (INS) must
overcome both the strong presumption in favor of judicial review of
administrative action and the longstanding rule requiring a clear and
unambiguous statement of congressional intent to repeal habeas ju-
risdiction. Here, that plain statement rule draws additional reinforce-
ment from other canons of statutory construction: First, when a statu-
tory interpretation invokes the outer limits of Congress’ power, there
must be a clear indication that Congress intended that result; and

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second, if an otherwise acceptable construction would raise serious con-
stitutional problems and an alternative interpretation is fairly possible,
the statute must be construed to avoid such problems. Pp. 298–300.
(b) Construing the amendments at issue to preclude court review
of a pure question of law would give rise to substantial constitutional
questions. The Constitution’s Suspension Clause, which protects the
privilege of the habeas corpus writ, unquestionably requires some ju-
dicial intervention in deportation cases. Heikkila v. Barber, 345 U. S.
229, 235. Even assuming that the Clause protects only the writ as it
existed in 1789, substantial evidence supports St. Cyr’s claim that pure
questions of law could have been answered in 1789 by a common-law
judge with power to issue the writ. Thus, a serious Suspension Clause
issue would arise if the 1996 statutes have withdrawn that power from
federal judges and provided no adequate substitute. The need to re-
solve such a serious and difficult constitutional question and the desir-
ability of avoiding that necessity reinforce the reasons for requiring a
clear and unambiguous statement of congressional intent. Pp. 300–305.
(c) To conclude that the writ is no longer available in this context
would also represent a marked departure from historical immigration
law practice. The writ has always been available to review the legality
of Executive detention, see, e. g., Felker v. Turpin, 518 U. S. 651, 663,
and, until the 1952 Act, a habeas action was the sole means of challeng-
ing a deportation order’s legality, see, e. g., Heikkila, 345 U. S., at 235.
Habeas courts have answered questions of law in alien suits challenging
Executive interpretations of immigration law and questions of law that
arose in the discretionary relief context. Pp. 305–308.
(d) Neither AEDPA § 401(e) nor three IIRIRA provisions, 8 U. S. C.
§§ 1252(a)(1), (a)(2)(C), and (b)(9), express a clear and unambiguous state-
ment of Congress’ intent to bar 28 U. S. C. § 2241 petitions. None of
these sections even mentions § 2241. Section 401(e)’s repeal of a sub-
section of the 1961 Act, which provided, inter alia, habeas relief for
an alien in custody pursuant to a deportation order, is not sufficient
to eliminate what the repealed section did not grant—namely, habeas
jurisdiction pursuant to § 2241. See Ex parte Yerger, 8 Wall. 85, 105–
106. The three IIRIRA provisions do not speak with sufficient clarity
to bar habeas jurisdiction. They focus on “judicial review” or “juris-
diction to review.” In the immigration context, however, “judicial
review” and “habeas corpus” have historically distinct meanings, with
habeas courts playing a far narrower role. Pp. 308–314.
2. Section 212(c) relief remains available for aliens, like St. Cyr, whose
convictions were obtained through plea agreements and who, notwith-
standing those convictions, would have been eligible for § 212(c) relief at
the time of their plea under the law then in effect. Pp. 314–326.

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(a) A statute’s language must require that it be applied retroac-
tively. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 208. The
first step in the impermissible-retroactive-effect determination is to
ascertain whether Congress has directed with the requisite clarity that
the law be applied retrospectively. Martin v. Hadix, 527 U. S. 343, 352.
Such clarity is not shown by the comprehensiveness of IIRIRA’s re-
vision of federal immigration law, see Landgraf v. USI Film Prod-
ucts, 511 U. S. 244, 260–261, by the promulgation of IIRIRA’s effec-
tive date, see id., at 257, or by IIRIRA § 309(c)(1)’s “saving provision.”
Pp. 314–320.
(b) The second step is to determine whether IIRIRA attaches
new legal consequences to events completed before its enactment, a
judgment informed and guided by considerations of fair notice, rea-
sonable reliance, and settled expectations. Landgraf, 511 U. S., at 270.
IIRIRA’s elimination of § 212(c) relief for people who entered into
plea agreements expecting that they would be eligible for such relief
clearly attaches a new disability to past transactions or considerations.
Plea agreements involve a quid pro quo between a criminal defend-
ant and the government, and there is little doubt that alien defendants
considering whether to enter into such agreements are acutely aware
of their convictions’ immigration consequences. The potential for un-
fairness to people like St. Cyr is significant and manifest. Now that
prosecutors have received the benefit of plea agreements, facilitated
by the aliens’ belief in their continued eligibility for § 212(c) relief, it
would be contrary to considerations of fair notice, reasonable reliance,
and settled expectations to hold that IIRIRA deprives them of any
possibility of such relief. The INS’ argument that application of de-
portation law can never have retroactive effect because deportation
proceedings are inherently prospective is not particularly helpful in
undertaking Landgraf ’s analysis, and the fact that deportation is
not punishment for past crimes does not mean that the Court cannot
consider an alien’s reasonable reliance on the continued availability
of discretionary relief from deportation when deciding the retroactive
effect of eliminating such relief. That § 212(c) relief is discretionary
does not affect the propriety of this Court’s conclusion, for there is a
clear difference between facing possible deportation and facing certain
deportation. Pp. 320–326.
229 F. 3d 406, affirmed.
Stevens, J., delivered the opinion of the Court, in which Kennedy,
Souter, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed a dis-
senting opinion, post, p. 326. Scalia, J., filed a dissenting opinion, in

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which Rehnquist, C. J., and Thomas, J., joined, and in which O’Connor,
J., joined as to Parts I and III, post, p. 326.
Deputy Solicitor General Kneedler argued the cause for
petitioner. With him on the briefs were Acting Solicitor
General Underwood, Acting Assistant Attorney General
Schiffer, Paul R. Q. Wolfson, Stephen C. Robinson, Donald
E. Keener, Alison R. Drucker, Ernesto H. Molina, and
James K. Filan, Jr.
Lucas Guttentag argued the cause for respondent. With
him on the brief were Lee Gelernt, Judy Rabinovitz, Steven
R. Shapiro, Jayashri Srikantiah, Michael G. Moore, and
Paul A. Engelmayer.*
Justice Stevens delivered the opinion of the Court.
Both the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), enacted on April 24, 1996, 110 Stat. 1214,
and the Illegal Immigration Reform and Immigrant Respon-
sibility Act of 1996 (IIRIRA), enacted on September 30,
1996, 110 Stat. 3009–546, contain comprehensive amend-
ments to the Immigration and Nationality Act (INA), 66
Stat. 163, as amended, 8 U. S. C. § 1101 et seq. This case
raises two important questions about the impact of those
amendments. The first question is a procedural one, con-
cerning the effect of those amendments on the availability
of habeas corpus jurisdiction under 28 U. S. C. § 2241. The
second question is a substantive one, concerning the im-
pact of the amendments on conduct that occurred before
*Daniel J. Popeo and R. Shawn Gunnarson filed a brief for the Wash-
ington Legal Foundation as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Florida Im-
migrant Advocacy Center et al. by Rebecca Sharpless; and for the National
Association of Criminal Defense Lawyers et al. by Manuel D. Vargas and
Joshua L. Dratel.
James Oldham, Michael J. Wishnie, and Douglas W. Baruch filed a brief
for Legal Historians as amici curiae.

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their enactment and on the availability of discretionary relief
from deportation.
Respondent, Enrico St. Cyr, is a citizen of Haiti who
was admitted to the United States as a lawful permanent
resident in 1986. Ten years later, on March 8, 1996, he
pleaded guilty in a state court to a charge of selling a con-
trolled substance in violation of Connecticut law. That con-
viction made him deportable. Under pre-AEDPA law appli-
cable at the time of his conviction, St. Cyr would have been
eligible for a waiver of deportation at the discretion of the
Attorney General. However, removal proceedings against
him were not commenced until April 10, 1997, after both
AEDPA and IIRIRA became effective, and, as the Attorney
General interprets those statutes, he no longer has discretion
to grant such a waiver.
In his habeas corpus petition, respondent has alleged that
the restrictions on discretionary relief from deportation con-
tained in the 1996 statutes do not apply to removal proceed-
ings brought against an alien who pleaded guilty to a de-
portable crime before their enactment. The District Court
accepted jurisdiction of his application and agreed with his
submission. In accord with the decisions of four other Cir-
cuits, the Court of Appeals for the Second Circuit affirmed.1
229 F. 3d 406 (2000). The importance of both questions war-
ranted our grant of certiorari. 531 U. S. 1107 (2001).
I
The character of the pre-AEDPA and pre-IIRIRA law
that gave the Attorney General discretion to waive de-
portation in certain cases is relevant to our appraisal of
both the substantive and the procedural questions raised by
1 See Mahadeo v. Reno, 226 F. 3d 3 (CA1 2000); Liang v. INS, 206 F. 3d
308 (CA3 2000); Tasios v. Reno, 204 F. 3d 544 (CA4 2000); Flores-
Miramontes v. INS, 212 F. 3d 1133 (CA9 2000). But see Max-George v.
Reno, 205 F. 3d 194 (CA5 2000); Morales-Ramirez v. Reno, 209 F. 3d 977
(CA7 2000); Richardson v. Reno, 180 F. 3d 1311 (CA11 1999).

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the petition of the Immigration and Naturalization Service
(INS). We shall therefore preface our discussion of those
questions with an overview of the sources, history, and scope
of that law.
Subject to certain exceptions, § 3 of the Immigration Act
of 1917 excluded from admission to the United States several
classes of aliens, including, for example, those who had com-
mitted crimes “involving moral turpitude.” 39 Stat. 875.
The seventh exception provided “[t]hat aliens returning after
a temporary absence to an unrelinquished United States
domicile of seven consecutive years may be admitted in the
discretion of the Secretary of Labor, and under such condi-
tions as he may prescribe.” Id., at 878.2 Although that
provision applied literally only to exclusion proceedings, and
although the deportation provisions of the statute did not
contain a similar provision, the INS relied on § 3 to grant
relief in deportation proceedings involving aliens who had
departed and returned to this country after the ground for
deportation arose. See, e. g., Matter of L, 1 I. & N. Dec. 1,
2 (1940).3
Section 212 of the Immigration and Nationality Act of
1952, which replaced and roughly paralleled § 3 of the 1917
Act, excluded from the United States several classes of
aliens, including those convicted of offenses involving moral
turpitude or the illicit traffic in narcotics. See 66 Stat. 182–
187. As with the prior law, this section was subject to a
proviso granting the Attorney General broad discretion to
2 The INS was subsequently transferred to the Department of Justice.
See Matter of L, 1 I. & N. Dec. 1, n. 1 (1940). As a result, the powers
previously delegated to the Secretary of Labor were transferred to the
Attorney General. See id., at 2.
3 The exercise of discretion was deemed a nunc pro tunc correction of
the record of reentry. In approving of this construction, the Attorney
General concluded that strictly limiting the seventh exception to exclusion
proceedings would be “capricious and whimsical.” Id., at 5.

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admit excludable aliens. See id., at 187. That proviso, cod-
ified at 8 U. S. C. § 1182(c), stated:
“Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under
an order of deportation, and who are returning to a law-
ful unrelinquished domicile of seven consecutive years,
may be admitted in the discretion of the Attorney
General . . . .”
Like § 3 of the 1917 Act, § 212(c) was literally applicable only
to exclusion proceedings, but it too has been interpreted by
the Board of Immigration Appeals (BIA) to authorize any
permanent resident alien with “a lawful unrelinquished dom-
icile of seven consecutive years” to apply for a discretionary
waiver from deportation. See Matter of Silva, 16 I. & N.
Dec. 26, 30 (1976) (adopting position of Francis v. INS, 532
F. 2d 268 (CA2 1976)). If relief is granted, the deportation
proceeding is terminated and the alien remains a perma-
nent resident.
The extension of § 212(c) relief to the deportation context
has had great practical importance, because deportable of-
fenses have historically been defined broadly. For exam-
ple, under the INA, aliens are deportable upon conviction
for two crimes of “moral turpitude” (or for one such crime
if it occurred within five years of entry into the country and
resulted in a jail term of at least one year). See 8 U. S. C.
§§ 1227(a)(2)(A)(i)–(ii) (1994 ed., Supp. V). In 1988, Con-
gress further specified that an alien is deportable upon con-
viction for any “aggravated felony,” Anti-Drug Abuse Act
of 1988, 102 Stat. 4469–4470, § 1227(a)(2)(A)(iii), which was
defined to include numerous offenses without regard to how
long ago they were committed.4 Thus, the class of aliens
4 See 8 U. S. C. § 1101(a)(43) (1994 ed. and Supp. V). While the term has
always been defined expansively, it was broadened substantially by
IIRIRA. For example, as amended by that statute, the term includes
all convictions for theft or burglary for which a term of imprisonment

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whose continued residence in this country has depended on
their eligibility for § 212(c) relief is extremely large, and not
surprisingly, a substantial percentage of their applications
for § 212(c) relief have been granted.5 Consequently, in the
period between 1989 and 1995 alone, § 212(c) relief was
granted to over 10,000 aliens.6
of at least one year is imposed (as opposed to five years pre-IIRIRA),
compare § 1101(a)(43)(G) (1994 ed., Supp. V) with § 1101(a)(43)(G) (1994
ed.), and all convictions involving fraud or deceit in which the loss to the
victim exceeds $10,000 (as opposed to $200,000 pre-IIRIRA), compare
§ 1101(a)(43)(M)(i) (1994 ed., Supp. V) with § 1101(a)(43)(M)(i) (1994 ed.).
In addition, the term includes any “crime of violence” resulting in a prison
sentence of at least one year (as opposed to five years pre-IIRIRA), com-
pare § 1101(a)(43)(F) (1994 ed., Supp. V) with § 1101(a)(43)(F) (1994 ed.),
and that phrase is itself broadly defined. See 18 U. S. C. § 16 (“[A]n of-
fense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another,” or “any other
offense that is a felony and that, by its nature, involves a substantial risk
that physical force against the person or property of another may be used
in the course of committing the offense”).
5 See, e. g., Rannik, The Anti-Terrorism and Effective Death Penalty Act
of 1996: A Death Sentence for the 212(c) Waiver, 28 U. Miami Inter-Am.
L. Rev. 123, 150, n. 80 (1996) (providing statistics indicating that 51.5% of
the applications for which a final decision was reached between 1989 and
1995 were granted); see also Mattis v. Reno, 212 F. 3d 31, 33 (CA1 2000)
(“[I]n the years immediately preceding the statute’s passage, over half the
applications were granted”); Tasios, 204 F. 3d, at 551 (same).
In developing these changes, the BIA developed criteria, comparable to
common-law rules, for deciding when deportation is appropriate. Those
criteria, which have been set forth in several BIA opinions, see, e. g.,
Matter of Marin, 16 I. & N. Dec. 581 (1978), include the seriousness
of the offense, evidence of either rehabilitation or recidivism, the dura-
tion of the alien’s residence, the impact of deportation on the family, the
number of citizens in the family, and the character of any service in the
Armed Forces.
6 See Rannik, 28 U. Miami Inter-Am. L. Rev., at 150, n. 80. However,
based on these statistics, one cannot form a reliable estimate of the num-
ber of individuals who will be affected by today’s decision. Since the 1996
statutes expanded the definition of “aggravated felony” substantially—and
retroactively—the number of individuals now subject to deportation ab-
sent § 212(c) relief is significantly higher than these figures would sug-

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Three statutes enacted in recent years have reduced the
size of the class of aliens eligible for such discretionary relief.
In 1990, Congress amended § 212(c) to preclude from dis-
cretionary relief anyone convicted of an aggravated felony
who had served a term of imprisonment of at least five
years. § 511, 104 Stat. 5052 (amending 8 U. S. C. § 1182(c)).
In 1996, in § 440(d) of AEDPA, Congress identified a broad
set of offenses for which convictions would preclude such
relief. See 110 Stat. 1277 (amending 8 U. S. C. § 1182(c)).7
And finally, that same year, Congress passed IIRIRA. That
statute, inter alia, repealed § 212(c), see § 304(b), 110 Stat.
3009–597, and replaced it with a new section that gives the
Attorney General the authority to cancel removal for a
narrow class of inadmissible or deportable aliens, see id.,
at 3009–594 (creating 8 U. S. C. § 1229b (1994 ed., Supp. V)).
So narrowed, that class does not include anyone previously
“convicted of any aggravated felony.” § 1229b(a)(3) (1994
ed., Supp. V).
In the Attorney General’s opinion, these amendments
have entirely withdrawn his § 212(c) authority to waive de-
portation for aliens previously convicted of aggravated fel-
onies. Moreover, as a result of other amendments adopted
in AEDPA and IIRIRA, the Attorney General also main-
tains that there is no judicial forum available to decide
whether these statutes did, in fact, deprive him of the power
to grant such relief. As we shall explain below, we dis-
agree on both points. In our view, a federal court does have
jurisdiction to decide the merits of the legal question, and
gest. In addition, the nature of the changes (bringing under the definition
more minor crimes which may have been committed many years ago) sug-
gests that an increased percentage of applicants will meet the stated crite-
ria for § 212(c) relief.
7 The new provision barred review for individuals ordered deported be-
cause of a conviction for an aggravated felony, for a drug conviction, for
certain weapons or national security violations, and for multiple convic-
tions involving crimes of moral turpitude. See 110 Stat. 1277.

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the District Court and the Court of Appeals decided that
question correctly in this case.
II
The first question we must consider is whether the District
Court retains jurisdiction under the general habeas corpus
statute, 28 U. S. C. § 2241, to entertain St. Cyr’s challenge.
His application for a writ raises a pure question of law. He
does not dispute any of the facts that establish his deport-
ability or the conclusion that he is deportable. Nor does he
contend that he would have any right to have an unfavor-
able exercise of the Attorney General’s discretion reviewed
in a judicial forum. Rather, he contests the Attorney Gen-
eral’s conclusion that, as a matter of statutory interpretation,
he is not eligible for discretionary relief.
The District Court held, and the Court of Appeals agreed,
that it had jurisdiction to answer that question in a habeas
corpus proceeding.8 The INS argues, however, that four
sections of the 1996 statutes—specifically, § 401(e) of AEDPA
and three sections of IIRIRA (8 U. S. C. §§ 1252(a)(1),
1252(a)(2)(C), and 1252(b)(9) (1994 ed., Supp. V))—stripped
the courts of jurisdiction to decide the question of law pre-
sented by respondent’s habeas corpus application.
For the INS to prevail it must overcome both the strong
presumption in favor of judicial review of administrative
action 9 and the longstanding rule requiring a clear state-
ment of congressional intent to repeal habeas jurisdiction.
See Ex parte Yerger, 8 Wall. 85, 102 (1869) (“We are not at
liberty to except from [habeas corpus jurisdiction] any cases
not plainly excepted by law”); Felker v. Turpin, 518 U. S.
651, 660–661 (1996) (noting that “[n]o provision of Title I
8 See n. 1, supra; n. 33, infra.
9 See, e. g., Bowen v. Michigan Academy of Family Physicians, 476
U. S. 667, 670 (1986); see also McNary v. Haitian Refugee Center, Inc.,
498 U. S. 479, 498 (1991); Webster v. Doe, 486 U. S. 592, 603 (1988); Johnson
v. Robison, 415 U. S. 361, 373–374 (1974).

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mentions our authority to entertain original habeas peti-
tions,” and the statute “makes no mention of our authority
to hear habeas petitions filed as original matters in this
Court”).10 Implications from statutory text or legislative
history are not sufficient to repeal habeas jurisdiction; in-
stead, Congress must articulate specific and unambiguous
statutory directives to effect a repeal. Ex parte Yerger, 8
Wall., at 105 (“Repeals by implication are not favored. They
are seldom admitted except on the ground of repugnancy;
and never, we think, when the former act can stand together
with the new act”). 11
In this case, the plain statement rule draws additional
reinforcement from other canons of statutory construction.
First, as a general matter, when a particular interpretation
of a statute invokes the outer limits of Congress’ power,
we expect a clear indication that Congress intended that re-
sult. See Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U. S. 568, 575 (1988).
Second, if an otherwise acceptable construction of a statute
10 “In traditionally sensitive areas, . . . the requirement of [a] clear state-
ment assures that the legislature has in fact faced, and intended to bring
into issue, the critical matters involved in the judicial decision.” Gregory
v. Ashcroft, 501 U. S. 452, 461 (1991) (internal quotation marks and cita-
tions omitted); see United States v. Nordic Village, Inc., 503 U. S. 30, 33
(1992) (“Waivers of the [Federal] Government’s sovereign immunity, to
be effective, must be ‘unequivocally expressed’ ”); Atascadero State Hos-
pital v. Scanlon, 473 U. S. 234, 242 (1985) (“Congress may abrogate the
States’ constitutionally secured immunity from suit in federal court
only by making its intention unmistakably clear in the language of the
statute”); see also Eskridge & Frickey, Quasi-Constitutional Law: Clear
Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 597
(1992) (“[T]he Court . . . has tended to create the strongest clear state-
ment rules to confine Congress’s power in areas in which Congress has
the constitutional power to do virtually anything”).
11 Cf. Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1018 (1984) (“[W]here
two statutes are capable of co-existence, it is the duty of the courts, absent
a clearly expressed congressional intention to the contrary, to regard each
as effective” (internal quotation marks omitted)).

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would raise serious constitutional problems, and where an
alternative interpretation of the statute is “fairly possible,”
see Crowell v. Benson, 285 U. S. 22, 62 (1932), we are obli-
gated to construe the statute to avoid such problems. See
Ashwander v. TVA, 297 U. S. 288, 341, 345–348 (1936) (Bran-
deis, J., concurring); United States ex rel. Attorney General
v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909).12
A construction of the amendments at issue that would
entirely preclude review of a pure question of law by any
court would give rise to substantial constitutional questions.
Article I, § 9, cl. 2, of the Constitution provides: “The Privi-
lege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public
Safety may require it.” Because of that Clause, some “ju-
dicial intervention in deportation cases” is unquestionably
“required by the Constitution.” Heikkila v. Barber, 345
U. S. 229, 235 (1953).
Unlike the provisions of AEDPA that we construed in
Felker v. Turpin, 518 U. S. 651 (1996), this case involves an
alien subject to a federal removal order rather than a person
confined pursuant to a state-court conviction. Accordingly,
regardless of whether the protection of the Suspension
12 “As was stated in Hooper v. California, 155 U. S. 648, 657 (1895),
‘[t]he elementary rule is that every reasonable construction must be re-
sorted to, in order to save a statute from unconstitutionality.’ This ap-
proach . . . also recognizes that Congress, like this Court, is bound by and
swears an oath to uphold the Constitution. The courts will therefore not
lightly assume that Congress intended to infringe constitutionally pro-
tected liberties or usurp power constitutionally forbidden it.” Edward
J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades
Council, 485 U. S. 568, 575 (1988) (citing Grenada County Supervisors
v. Brogden, 112 U. S. 261, 269 (1884)); see also NLRB v. Catholic Bishop
of Chicago, 440 U. S. 490, 499–501, 504 (1979); Murray v. Schooner Charm-
ing Betsy, 2 Cranch 64, 118 (1804); Machinists v. Street, 367 U. S. 740,
749–750 (1961); Crowell v. Benson, 285 U. S. 22, 62 (1932); Lucas v. Alexan-
der, 279 U. S. 573, 577 (1929); Panama R. Co. v. Johnson, 264 U. S. 375,
390 (1924); Delaware & Hudson Co., 213 U. S., at 407–408; Parsons v. Bed-
ford, 3 Pet. 433, 448–449 (1830) (Story, J.).

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Clause encompasses all cases covered by the 1867 Amend-
ment extending the protection of the writ to state prisoners,
cf. id., at 663–664, or by subsequent legal developments,
see LaGuerre v. Reno, 164 F. 3d 1035 (CA7 1998), at the
absolute minimum, the Suspension Clause protects the writ
“as it existed in 1789.” 13 Felker, 518 U. S., at 663–664.
At its historical core, the writ of habeas corpus has
served as a means of reviewing the legality of Executive
detention, and it is in that context that its protections have
been strongest.14 See, e. g., Swain v. Pressley, 430 U. S. 372,
380, n. 13 (1977); id., at 385–386 (Burger, C. J., concurring)
(noting that “the traditional Great Writ was largely a rem-
edy against executive detention”); Brown v. Allen, 344 U. S.
443, 533 (1953) (Jackson, J., concurring in result) (“The his-
toric purpose of the writ has been to relieve detention by
executive authorities without judicial trial”). In England
prior to 1789, in the Colonies,15 and in this Nation during
the formative years of our Government, the writ of habeas
corpus was available to nonenemy aliens as well as to citi-
13 The fact that this Court would be required to answer the difficult
question of what the Suspension Clause protects is in and of itself a rea-
son to avoid answering the constitutional questions that would be raised
by concluding that review was barred entirely. Cf. Neuman, Habeas
Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L.
Rev. 961, 980 (1998) (noting that “reconstructing habeas corpus law . . .
[for purposes of a Suspension Clause analysis] would be a difficult en-
terprise, given fragmentary documentation, state-by-state disuniformity,
and uncertainty about how state practices should be transferred to new
national institutions”).
14 At common law, “[w]hile habeas review of a court judgment was
limited to the issue of the sentencing court’s jurisdictional competency,
an attack on an executive order could raise all issues relating to the legal-
ity of the detention.” Note, Developments in the Law—Federal Habeas
Corpus, 83 Harv. L. Rev. 1038, 1238 (1970).
15 See W. Duker, A Constitutional History of Habeas Corpus 115 (1980)
(noting that “the common-law writ of habeas corpus was in operation in
all thirteen of the British colonies that rebelled in 1776”).

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302 INS v. ST. CYR
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zens.16 It enabled them to challenge Executive and private
detention in civil cases as well as criminal.17 Moreover,
the issuance of the writ was not limited to challenges to the
jurisdiction of the custodian, but encompassed detentions
based on errors of law, including the erroneous application
or interpretation of statutes.18 It was used to command the
discharge of seamen who had a statutory exemption from
impressment into the British Navy,19 to emancipate slaves,20
and to obtain the freedom of apprentices 21 and asylum
inmates.22 Most important, for our purposes, those early
cases contain no suggestion that habeas relief in cases in-
16 See Sommersett v. Stewart, 20 How. St. Tr. 1, 79–82 (K. B. 1772); Case
of the Hottentot Venus, 13 East 195, 104 Eng. Rep. 344 (K. B. 1810); King
v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); United States v.
Villato, 28 F. Cas. 377 (No. 16,622) (CC Pa. 1797); Commonwealth v. Hol-
loway, 1 Serg. & Rawle 392 (Pa. 1815); Ex parte D’Olivera, 7 F. Cas. 853
(No. 3,967) (CC Mass. 1813); see also Brief for Legal Historians as Amici
Curiae 10–11; Neuman, Habeas Corpus, Executive Detention, and the Re-
moval of Aliens, 98 Colum. L. Rev., at 990–1004.
17 See King v. Nathan, 2 Strange 880, 93 Eng. Rep. 914 (K. B. 1724);
Ex parte Boggin, 13 East 549, 104 Eng. Rep. 484 (K. B. 1811); Hollings-
head’s Case, 1 Salkeld 351, 91 Eng. Rep. 307 (K. B. 1702); Dr. Groenvelt’s
Case, 1 Ld. Raym. 213, 91 Eng. Rep. 1038 (K. B. 1702); Bushell’s Case,
Vaughan 135, 124 Eng. Rep. 1006 (C. P. 1670); Ex parte Randolph, 20 F.
Cas. 242 (No. 11,558) (CC Va. 1833) (Marshall, C. J., on circuit); Ex parte
D’Olivera, 7 F. Cas. 853 (No. 3,967) (CC Mass. 1813); Respublica v. Kep-
pele, 2 Dall. 197 (Pa. 1793).
18 See, e. g., Hollingshead’s Case, 1 Salkeld 351, 91 Eng. Rep. 307 (K. B.
1702); King v. Nathan, 2 Strange 880, 93 Eng. Rep. 914 (K. B. 1724); United
States v. Bainbridge, 24 F. Cas. 946 (No. 14,497) (CC Mass. 1816); Ex parte
Randolph, 20 F. Cas. 242 (No. 11,558) (CC Va. 1833) (Marshall, C. J., on
circuit); see also Brief for Legal Historians as Amici Curiae 3–10 (collect-
ing cases).
19 See, e. g., the case of King v. White (1746) quoted in the addendum to
Sommersett v. Stewart, 20 How. St. Tr., at 1376.
20 Id., at 79–82.
21 King v. Delaval, 3 Burr. 1434, 97 Eng. Rep. 913 (K. B. 1763).
22 King v. Turlington, 2 Burr. 1115, 97 Eng. Rep. 741 (K. B. 1761).

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volving Executive detention was only available for constitu-
tional error.23
Notwithstanding the historical use of habeas corpus to
remedy unlawful Executive action, the INS argues that this
case falls outside the traditional scope of the writ at com-
mon law. It acknowledges that the writ protected an indi-
vidual who was held without legal authority, but argues
that the writ would not issue where “an official had statu-
tory authorization to detain the individual . . . but . . . the
official was not properly exercising his discretionary power
to determine whether the individual should be released.”
Brief for Respondent in Colcano-Martinez v. INS, O. T. 2000,
No. 00–1011, p. 33. In this case, the INS points out, there
is no dispute that the INS had authority in law to hold
St. Cyr, as he is eligible for removal. St. Cyr counters that
there is historical evidence of the writ issuing to redress the
23 See, e. g., Ex parte Boggin, 13 East 549, n. (b), 104 Eng. Rep. 484, n. (a)2
(K. B. 1811) (referring to Chalacombe’s Case, in which the court required a
response from the Admiralty in a case involving the impressment of a
master of a coal vessel, despite the argument that exemptions for “sea-
faring persons of this description” were given only as a matter of “grace
and favour,” not “of right”); Hollingshead’s Case, 1 Salkeld 351, 91 Eng.
Rep. 307 (K. B. 1702) (granting relief on the grounds that the language of
the warrant of commitment—authorizing detention until “otherwise dis-
charged by due course of law”—exceeded the authority granted under the
statute to commit “till [the bankrupt] submit himself to be examined by
the commissioners”); see also Brief for Legal Historians as Amici Curiae
8–10, 18–28.
The dissent, however, relies on Chalacombe’s Case as its sole support
for the proposition that courts treated Executive discretion as “lying en-
tirely beyond the judicial ken.” See post, at 343 (opinion of Scalia, J.).
Although Lord Ellenborough expressed “some hesitation” as to whether
the case should “stand over for the consideration of the Admiralty,” he
concluded that, given the public importance of the question, the response
should be called for. 13 East, at 549, n. (b), 104 Eng. Rep., at 484, n. (a) 2
.
The case ultimately became moot when the Admiralty discharged Chala-
combe, but it is significant that, despite some initial hesitation, the court
decided to proceed.

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304 INS v. ST. CYR
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improper exercise of official discretion. See n. 23, supra;
Hafetz, The Untold Story of Noncriminal Habeas Corpus and
the 1996 Immigration Acts, 107 Yale L. J. 2509 (1998).
St. Cyr’s constitutional position also finds some support
in our prior immigration cases. In Heikkila v. Barber, the
Court observed that the then-existing statutory immigration
scheme “had the effect of precluding judicial intervention in
deportation cases except insofar as it was required by the
Constitution,” 345 U. S., at 234–235 (emphasis added)—and
that scheme, as discussed below, did allow for review on
habeas of questions of law concerning an alien’s eligibility
for discretionary relief. Therefore, while the INS’ histori-
cal arguments are not insubstantial, the ambiguities in the
scope of the exercise of the writ at common law identified
by St. Cyr, and the suggestions in this Court’s prior deci-
sions as to the extent to which habeas review could be lim-
ited consistent with the Constitution, convince us that the
Suspension Clause questions that would be presented by
the INS’ reading of the immigration statutes before us are
difficult and significant.24
In sum, even assuming that the Suspension Clause pro-
tects only the writ as it existed in 1789, there is substantial
24 The dissent reads into Chief Justice Marshall’s opinion in Ex parte
Bollman, 4 Cranch 75 (1807), support for a proposition that the Chief
Justice did not endorse, either explicitly or implicitly. See post, at 339–
340 (opinion of Scalia, J.). He did note that “the first congress of the
United States” acted under “the immediate influence” of the injunction
provided by the Suspension Clause when it gave “life and activity” to
“this great constitutional privilege” in the Judiciary Act of 1789, and that
the writ could not be suspended until after the statute was enacted. 4
Cranch, at 95. That statement, however, surely does not imply that Mar-
shall believed the Framers had drafted a Clause that would proscribe a
temporary abrogation of the writ, while permitting its permanent suspen-
sion. Indeed, Marshall’s comment expresses the far more sensible view
that the Clause was intended to preclude any possibility that “the privi-
lege itself would be lost” by either the inaction or the action of Congress.
See, e. g., ibid. (noting that the Founders “must have felt, with peculiar
force, the obligation” imposed by the Suspension Clause).

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evidence to support the proposition that pure questions of
law like the one raised by the respondent in this case could
have been answered in 1789 by a common-law judge with
power to issue the writ of habeas corpus. It necessarily fol-
lows that a serious Suspension Clause issue would be pre-
sented if we were to accept the INS’ submission that the
1996 statutes have withdrawn that power from federal
judges and provided no adequate substitute for its exercise.
See Hart, The Power of Congress to Limit the Jurisdiction
of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev.
1362, 1395–1397 (1953). The necessity of resolving such a
serious and difficult constitutional issue—and the desirabil-
ity of avoiding that necessity—simply reinforce the reasons
for requiring a clear and unambiguous statement of congres-
sional intent.
Moreover, to conclude that the writ is no longer available
in this context would represent a departure from historical
practice in immigration law. The writ of habeas corpus has
always been available to review the legality of Executive
detention. See Felker, 518 U. S., at 663; Swain v. Pressley,
430 U. S., at 380, n. 13; id., at 385–386 (Burger, C. J., concur-
ring); Brown v. Allen, 344 U. S., at 533 (Jackson, J., con-
curring in result). Federal courts have been authorized to
issue writs of habeas corpus since the enactment of the Judi-
ciary Act of 1789, and § 2241 of the Judicial Code provides
that federal judges may grant the writ of habeas corpus on
the application of a prisoner held “in custody in violation of
the Constitution or laws or treaties of the United States.” 25
28 U. S. C. § 2241. Before and after the enactment in 1875
of the first statute regulating immigration, 18 Stat. 477, that
jurisdiction was regularly invoked on behalf of noncitizens,
particularly in the immigration context. See, e. g., In re
25 In fact, § 2241 descends directly from § 14 of the Judiciary Act of 1789
and the 1867 Act. See Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82; Act
of Feb. 5, 1867, ch. 28, 14 Stat. 385. Its text remained undisturbed by
either AEDPA or IIRIRA.

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306 INS v. ST. CYR
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Kaine, 14 How. 103 (1853); United States v. Jung Ah Lung,
124 U. S. 621, 626–632 (1888).
Until the enactment of the 1952 Immigration and National-
ity Act, the sole means by which an alien could test the legal-
ity of his or her deportation order was by bringing a habeas
corpus action in district court.26 See, e. g., United States v.
Jung Ah Lung, 124 U. S. 621 (1888); Heikkila, 345 U. S., at
235; Chin Yow v. United States, 208 U. S. 8 (1908); Ng Fung
Ho v. White, 259 U. S. 276, 284 (1922). In such cases, other
than the question whether there was some evidence to sup-
port the order, 27 the courts generally did not review factual
determinations made by the Executive. See Ekiu v. United
States, 142 U. S. 651, 659 (1892). However, they did review
the Executive’s legal determinations. See Gegiow v. Uhl,
239 U. S. 3, 9 (1915) (“The statute by enumerating the con-
ditions upon which the allowance to land may be denied, pro-
hibits the denial in other cases. And when the record shows
that a commissioner of immigration is exceeding his power,
the alien may demand his release upon habeas corpus”); see
also Neuman, Jurisdiction and the Rule of Law after the 1996
Immigration Act, 113 Harv. L. Rev. 1963, 1965–1969 (2000).28
In case after case, courts answered questions of law in ha-
26 After 1952, judicial review of deportation orders could also be ob-
tained by declaratory judgment actions brought in federal district court.
Shaughnessy v. Pedreiro, 349 U. S. 48 (1955). However, in 1961, Congress
acted to consolidate review in the courts of appeals. See Foti v. INS, 375
U. S. 217 (1963).
27 See, e. g., United States ex rel. Vajtauer v. Commissioner of Immi-
gration, 273 U. S. 103, 106 (1927) (holding that deportation “on charges
unsupported by any evidence is a denial of due process which may be
corrected on habeas corpus”).
28 “And when the record shows that a commissioner of immigration
is exceeding his power, the alien may demand his release upon habeas
corpus. The conclusiveness of the decisions of immigration officers under
§ 25 is conclusiveness upon matters of fact. This was implied in Nishi-
mura Ekiu v. United States, 142 U. S. 651, relied on by the Government.”
Gegiow v. Uhl, 239 U. S. 3, 9 (1915).

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beas corpus proceedings brought by aliens challenging Exec-
utive interpretations of the immigration laws.29
Habeas courts also regularly answered questions of law
that arose in the context of discretionary relief. See, e. g.,
United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260
(1954); United States ex rel. Hintopoulos v. Shaughnessy,
353 U. S. 72, 77 (1957).30 Traditionally, courts recognized a
distinction between eligibility for discretionary relief, on the
one hand, and the favorable exercise of discretion, on the
other hand. See Neuman, 113 Harv. L. Rev., at 1991 (noting
the “strong tradition in habeas corpus law . . . that sub-
jects the legally erroneous failure to exercise discretion,
unlike a substantively unwise exercise of discretion, to in-
quiry on the writ”). Eligibility that was “governed by spe-
29 See, e. g., Delgadillo v. Carmichael, 332 U. S. 388, 391 (1947) (rejecting
on habeas the Government’s interpretation of the statutory term “entry”);
Bridges v. Wixon, 326 U. S. 135, 149 (1945) (rejecting on habeas the Gov-
ernment’s interpretation of the term “affiliation” with the Communist
Party); Kessler v. Strecker, 307 U. S. 22, 35 (1939) (holding that “as the
Secretary erred in the construction of the statute, the writ must be
granted”). Cf. Mahler v. Eby, 264 U. S. 32, 46 (1924) (reviewing on habeas
the question whether the absence of an explicit factual finding that the
aliens were “undesirable” invalidated the warrant of deportation).
30 Indeed, under the pre-1952 regime which provided only what Heikkila
termed the constitutional minimum of review, on habeas lower federal
courts routinely reviewed decisions under the Seventh Proviso, the statu-
tory predecessor to § 212(c), to ensure the lawful exercise of discretion.
See, e. g., United States ex rel. Devenuto v. Curran, 299 F. 206 (CA2 1924);
Hee Fuk Yuen v. White, 273 F. 10 (CA9 1921); United States ex rel. Patti
v. Curran, 22 F. 2d 314 (SDNY 1926); Gabriel v. Johnson, 29 F. 2d 347
(CA1 1928). During the same period, habeas was also used to review
legal questions that arose in the context of the Government’s exercise of
other forms of discretionary relief under the 1917 Act. See, e. g., United
States ex rel. Adel v. Shaughnessy, 183 F. 2d 371 (CA2 1950); United States
ex rel. Kaloudis v. Shaughnessy, 180 F. 2d 489 (CA2 1950); Mastrapasqua
v. Shaughnessy, 180 F. 2d 999 (CA2 1950); United States ex rel. de Sousa
v. Day, 22 F. 2d 472 (CA2 1927); Gonzalez-Martinez v. Landon, 203 F. 2d
196 (CA9 1953); United States ex rel. Berman v. Curran, 13 F. 2d 96
(CA3 1926).

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308 INS v. ST. CYR
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cific statutory standards” provided “a right to a ruling on
an applicant’s eligibility,” even though the actual granting of
relief was “not a matter of right under any circumstances,
but rather is in all cases a matter of grace.” Jay v. Boyd,
351 U. S. 345, 353–354 (1956). Thus, even though the actual
suspension of deportation authorized by § 19(c) of the Immi-
gration Act of 1917 was a matter of grace, in United States
ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954), we held
that a deportable alien had a right to challenge the Execu-
tive’s failure to exercise the discretion authorized by the law.
The exercise of the District Court’s habeas corpus jurisdic-
tion to answer a pure question of law in this case is entirely
consistent with the exercise of such jurisdiction in Accardi.
See also United States ex rel. Hintopoulos v. Shaughnessy,
353 U. S., at 77.
Thus, under the pre-1996 statutory scheme—and consist-
ent with its common-law antecedents—it is clear that St. Cyr
could have brought his challenge to the BIA’s legal determi-
nation in a habeas corpus petition under 28 U. S. C. § 2241.
The INS argues, however, that AEDPA and IIRIRA contain
four provisions that express a clear and unambiguous state-
ment of Congress’ intent to bar petitions brought under
§ 2241, despite the fact that none of them mention that sec-
tion. The first of those provisions is AEDPA’s § 401(e).
While the title of § 401(e)—“Elimination of Custody
Review by Habeas Corpus”—would seem to support the
INS’ submission, the actual text of that provision does not.31
As we have previously noted, a title alone is not controlling.
Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206,
31 The section reads as follows:
“(e) Elimination of Custody Review by Habeas Corpus.—Sec-
tion 106(a) of the Immigration and Nationality Act (8 U. S. C. 1105a(a))
is amended—
“(1) in paragraph (8), by adding ‘and’ at the end;
“(2) in paragraph (9), by striking ‘; and’ at the end and inserting a
period; and
“(3) by striking paragraph (10).” 110 Stat. 1268.

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212 (1998) (“ ‘[T]he title of a statute . . . cannot limit the
plain meaning of the text. For interpretive purposes, [it is]
of use only when [it] shed[s] light on some ambiguous word
or phrase’ ” (quoting Trainmen v. Baltimore & Ohio R. Co.,
331 U. S. 519, 528–529 (1947))). The actual text of § 401(e),
unlike its title, merely repeals a subsection of the 1961 stat-
ute amending the judicial review provisions of the 1952
Immigration and Nationality Act. See n. 31, supra. Nei-
ther the title nor the text makes any mention of 28 U. S. C.
§ 2241.
Under the 1952 Act, district courts had broad authority to
grant declaratory and injunctive relief in immigration cases,
including orders adjudicating deportability and those deny-
ing suspensions of deportability. See Foti v. INS, 375 U. S.
217, 225–226 (1963). The 1961 Act withdrew that jurisdic-
tion from the district courts and provided that the pro-
cedures set forth in the Hobbs Act would be the “sole and
exclusive procedure” for judicial review of final orders of de-
portation, subject to a series of exceptions. See 75 Stat.
651. The last of those exceptions stated that “any alien held
in custody pursuant to an order of deportation may obtain
review thereof by habeas corpus proceedings.” See id., at
652, codified at 8 U. S. C. § 1105a(10) (repealed Sept. 30,
1996).
The INS argues that the inclusion of that exception in the
1961 Act indicates that Congress must have believed that
it would otherwise have withdrawn the pre-existing habeas
corpus jurisdiction in deportation cases, and that, as a result,
the repeal of that exception in AEDPA in 1996 implicitly
achieved that result. It seems to us, however, that the 1961
exception is best explained as merely confirming the limited
scope of the new review procedures. In fact, the 1961 House
Report provides that this section “in no way disturbs the
Habeas Corpus Act.” 32 H. R. Rep. No. 1086, 87th Cong., 1st
32 Moreover, the focus of the 1961 amendments appears to have been
the elimination of Administrative Procedure Act (APA) suits that were
brought in the district court and that sought declaratory relief. See, e. g.,

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310 INS v. ST. CYR
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Sess., 29 (1961). Moreover, a number of the courts that con-
sidered the interplay between the general habeas provision
and INA § 106(a)(10) after the 1961 Act and before the enact-
ment of AEDPA did not read the 1961 Act’s specific habeas
provision as supplanting jurisdiction under § 2241. Orozco
v. INS, 911 F. 2d 539, 541 (CA11 1990); United States ex rel.
Marcello v. INS, 634 F. 2d 964, 967 (CA5 1981); Sotelo Mon-
dragon v. Ilchert, 653 F. 2d 1254, 1255 (CA9 1980).
In any case, whether § 106(a)(10) served as an independent
grant of habeas jurisdiction or simply as an acknowledgment
of continued jurisdiction pursuant to § 2241, its repeal cannot
be sufficient to eliminate what it did not originally grant—
namely, habeas jurisdiction pursuant to 28 U. S. C. § 2241.33
See Ex parte Yerger, 8 Wall., at 105–106 (concluding that the
repeal of “an additional grant of jurisdiction” does not “oper-
ate as a repeal of jurisdiction theretofore allowed”); Ex parte
McCardle, 7 Wall. 506, 515 (1869) (concluding that the repeal
of portions of the 1867 statute conferring appellate jurisdic-
tion on the Supreme Court in habeas proceedings did “not
affect the jurisdiction which was previously exercised”).
The INS also relies on three provisions of IIRIRA,
now codified at 8 U. S. C. §§ 1252(a)(1), 1252(a)(2)(C), and
H. R. No. 2478, 85th Cong., 2d Sess., 9 (1958) (“[H]abeas corpus is a far
more expeditious judicial remedy than that of declaratory judgment”);
104 Cong. Rec. 17173 (1958) (statement of Rep. Walter) (stating that
courts would be “relieved of a great burden” once declaratory actions were
eliminated and noting that habeas corpus was an “expeditious” means of
review).
33 As the INS acknowledges, the overwhelming majority of Courts of
Appeals concluded that district courts retained habeas jurisdiction under
§ 2241 after AEDPA. See Goncalves v. Reno, 144 F. 3d 110 (CA1 1998);
Henderson v. INS, 157 F. 3d 106 (CA2 1998); Sandoval v. Reno, 166 F. 3d
225 (CA3 1999); Bowrin v. INS, 194 F. 3d 483 (CA4 1999); Requena-
Rodriguez v. Pasquarell, 190 F. 3d 299 (CA5 1999); Pak v. Reno, 196 F. 3d
666 (CA6 1999); Shah v. Reno, 184 F. 3d 719 (CA8 1999); Magana-Pizano
v. INS, 200 F. 3d 603 (CA9 1999); Jurado-Gutierrez v. Greene, 190 F. 3d
1135 (CA10 1999); Mayers v. INS, 175 F. 3d 1289 (CA11 1999). But see
LaGuerre v. Reno, 164 F. 3d 1035 (CA7 1998).

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1252(b)(9) (1994 ed., Supp. V). As amended by § 306 of
IIRIRA, 8 U. S. C. § 1252(a)(1) (1994 ed., Supp. V) now pro-
vides that, with certain exceptions, including those set out
in subsection (b) of the same statutory provision, “[j]udicial
review of a final order of removal . . . is governed only by”
the Hobbs Act’s procedures for review of agency orders
in the courts of appeals. Similarly, § 1252(b)(9), which ad-
dresses the “[c]onsolidation of questions for judicial review,”
provides that “[j]udicial review of all questions of law and
fact, including interpretation and application of constitu-
tional and statutory provisions, arising from any action
taken or proceeding brought to remove an alien from the
United States under this subchapter shall be available only
in judicial review of a final order under this section.” 34 Fi-
nally, § 1252(a)(2)(C), which concerns “[m]atters not subject
to judicial review,” states: “Notwithstanding any other pro-
vision of law, no court shall have jurisdiction to review any
final order of removal against an alien who is removable by
reason of having committed” certain enumerated criminal
offenses.
The term “judicial review” or “jurisdiction to review” is
the focus of each of these three provisions. In the immi-
gration context, “judicial review” and “habeas corpus” have
historically distinct meanings. See Heikkila v. Barber, 345
U. S. 229 (1953). In Heikkila, the Court concluded that the
finality provisions at issue “preclud[ed] judicial review” to
the maximum extent possible under the Constitution, and
thus concluded that the APA was inapplicable. Id., at 235.
Nevertheless, the Court reaffirmed the right to habeas
34 Title 8 U. S. C. § 1252(g) (1994 ed., Supp. V), entitled “Exclusive juris-
diction,” is not relevant to our analysis of the jurisdictional issue. In
Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471 (1999)
(AADC), we explained that that provision applied only to three types
of discretionary decisions by the Attorney General—specifically, to com-
mence proceedings, to adjudicate cases, or to execute removal orders—
none of which are at issue here.

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corpus. Ibid. Noting that the limited role played by the
courts in habeas corpus proceedings was far narrower than
the judicial review authorized by the APA, the Court con-
cluded that “it is the scope of inquiry on habeas corpus that
differentiates” habeas review from “judicial review.” Id., at
236; see also, e. g., Terlinden v. Ames, 184 U. S. 270, 278
(1902) (noting that under the extradition statute then in
effect there was “no right of review to be exercised by any
court or judicial officer,” but that limited review on habeas
was nevertheless available); Ekiu, 142 U. S., at 663 (observ-
ing that while a decision to exclude an alien was subject to
inquiry on habeas, it could not be “impeached or reviewed”).
Both §§ 1252(a)(1) and (a)(2)(C) speak of “judicial review”—
that is, full, nonhabeas review. Neither explicitly mentions
habeas,35 or 28 U. S. C. § 2241.36 Accordingly, neither pro-
35 Contrary to the dissent, see post, at 330 (opinion of Scalia, J.), we do
not think, given the longstanding distinction between “judicial review”
and “habeas,” that § 1252(e)(2)’s mention of habeas in the subsection gov-
erning “[j]udicial review of orders under section 1225(b)(1)” is sufficient
to establish that Congress intended to abrogate the historical distinc-
tion between two terms of art in the immigration context when enacting
IIRIRA.
“[W]here Congress borrows terms of art in which are accumulated the
legal tradition and meaning of centuries of practice, it presumably knows
and adopts the cluster of ideas that were attached to each borrowed word
in the body of learning from which it was taken and the meaning its
use will convey to the judicial mind unless otherwise instructed. In such
case, absence of contrary direction may be taken as satisfaction with
widely accepted definitions, not as a departure from them.” Morissette
v. United States, 342 U. S. 246, 263 (1952).
At most, § 1252(e)(2) introduces additional statutory ambiguity, but
ambiguity does not help the INS in this case. As we noted above, only
the clearest statement of congressional intent will support the INS’ posi-
tion. See supra, at 305.
36 It is worth noting that in enacting the provisions of AEDPA and
IIRIRA that restricted or altered judicial review, Congress did refer
specifically to several different sources of jurisdiction. See, e. g., § 381,
110 Stat. 3009–650 (adding to grant of jurisdiction under 8 U. S. C. § 1329
(1994 ed., Supp. V) a provision barring jurisdiction under that provision

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vision speaks with sufficient clarity to bar jurisdiction pur-
suant to the general habeas statute.
The INS also makes a separate argument based on 8
U. S. C. § 1252(b)(9) (1994 ed., Supp. V). We have previ-
ously described § 1252(b)(9) as a “zipper clause.” AADC,
525 U. S. 471, 483 (1999). Its purpose is to consolidate “ju-
dicial review” of immigration proceedings into one action
in the court of appeals, but it applies only “[w]ith respect to
review of an order of removal under subsection (a)(1).”
8 U. S. C. § 1252(b) (1994 ed., Supp. V).37 Accordingly, this
provision, by its own terms, does not bar habeas jurisdic-
tion over removal orders not subject to judicial review
under § 1252(a)(1)—including orders against aliens who are
removable by reason of having committed one or more crimi-
nal offenses. Subsection (b)(9) simply provides for the con-
solidation of issues to be brought in petitions for “[j]udicial
review,” which, as we note above, is a term historically dis-
for suits against the United States or its officers or agents). Section
401(e), which eliminated supplemental habeas jurisdiction under the
INA, expressly strikes paragraph 10 of § 106(a) of the INA, not 28 U. S. C.
§ 2241. Similarly, § 306 of IIRIRA, which enacted the new INA § 242,
specifically precludes reliance on the provisions of the APA providing for
the taking of additional evidence, and imposes specific limits on the avail-
ability of declaratory relief. See, e. g., 8 U. S. C. § 1535(e)(2) (1994 ed.,
Supp. V) (explicitly barring aliens detained under “alien terrorist removal”
procedures from seeking “judicial review, including application for a writ
of habeas corpus, except for a claim by the alien that continued detention
violates the alien’s rights under the Constitution”). At no point, how-
ever, does IIRIRA make express reference to § 2241. Given the historic
use of § 2241 jurisdiction as a means of reviewing deportation and exclu-
sion orders, Congress’ failure to refer specifically to § 2241 is particularly
significant. Cf. Chisom v. Roemer, 501 U. S. 380, 396, n. 23 (1991).
37 As we noted in AADC, courts construed the 1961 amendments as
channeling review of final orders to the courts of appeals, but still per-
mitting district courts to exercise their traditional jurisdiction over
claims that were viewed as being outside of a “final order.” 525 U. S.,
at 485. Read in light of this history, § 1252(b)(9) ensures that review of
those types of claims will now be consolidated in a petition for review and
considered by the courts of appeals.

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314 INS v. ST. CYR
Opinion of the Court
tinct from habeas. See Mahadeo v. Reno, 226 F. 3d 3, 12
(CA1 2000); Flores-Miramontes v. INS, 212 F. 3d 1133, 1140
(CA9 2000). It follows that § 1252(b)(9) does not clearly
apply to actions brought pursuant to the general habeas
statute, and thus cannot repeal that statute either in part
or in whole.
If it were clear that the question of law could be an-
swered in another judicial forum, it might be permissible to
accept the INS’ reading of § 1252. But the absence of such
a forum, coupled with the lack of a clear, unambiguous, and
express statement of congressional intent to preclude judi-
cial consideration on habeas of such an important question
of law, strongly counsels against adopting a construction that
would raise serious constitutional questions.38 Cf. Felker,
518 U. S., at 660–661. Accordingly, we conclude that habeas
jurisdiction under § 2241 was not repealed by AEDPA and
IIRIRA.
III
The absence of a clearly expressed statement of con-
gressional intent also pervades our review of the merits of
St. Cyr’s claim. Two important legal consequences ensued
from respondent’s entry of a guilty plea in March 1996: (1) He
became subject to deportation, and (2) he became eligible
for a discretionary waiver of that deportation under the pre-
38 The dissent argues that our decision will afford more rights to crimi-
nal aliens than to noncriminal aliens. However, as we have noted, the
scope of review on habeas is considerably more limited than on APA-style
review. Moreover, this case raises only a pure question of law as to re-
spondent’s statutory eligibility for discretionary relief, not, as the dissent
suggests, an objection to the manner in which discretion was exercised.
As to the question of timing and congruent means of review, we note
that Congress could, without raising any constitutional questions, provide
an adequate substitute through the courts of appeals. See, e. g., Swain v.
Pressley, 430 U. S. 372, 381 (1977) (“[T]he substitution of a collateral rem-
edy which is neither inadequate nor ineffective to test the legality of a
person’s detention” does not violate the Suspension Clause).

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vailing interpretation of § 212(c). When IIRIRA went into
effect in April 1997, the first consequence was unchanged
except for the fact that the term “removal” was substituted
for “deportation.” The issue that remains to be resolved is
whether IIRIRA § 304(b) changed the second consequence
by eliminating respondent’s eligibility for a waiver.
The INS submits that the statute resolves the issue be-
cause it unambiguously communicates Congress’ intent to
apply the provisions of IIRIRA’s Title III–A to all removals
initiated after the effective date of the statute, and, in any
event, its provisions only operate prospectively and not
retrospectively. The Court of Appeals, relying primarily
on the analysis in our opinion in Landgraf v. USI Film Prod-
ucts, 511 U. S. 244 (1994), held, contrary to the INS’ argu-
ments, that Congress’ intentions concerning the application
of the “Cancellation of Removal” procedure are ambiguous
and that the statute imposes an impermissible retroactive
effect on aliens who, in reliance on the possibility of § 212(c)
relief, pleaded guilty to aggravated felonies. See 229 F. 3d,
at 416, 420. We agree.
Retroactive statutes raise special concerns. See Land-
graf, 511 U. S., at 266. “The Legislature’s unmatched pow-
ers allow it to sweep away settled expectations suddenly
and without individualized consideration. Its responsivity
to political pressures poses a risk that it may be tempted
to use retroactive legislation as a means of retribution
against unpopular groups or individuals.” 39 Ibid. Accord-
ingly, “congressional enactments . . . will not be construed
to have retroactive effect unless their language requires this
39 The INS appears skeptical of the notion that immigrants might be
considered an “ ‘unpopular group.’ ” See Brief for Petitioner 15, n. 8.
But see Legomsky, Fear and Loathing in Congress and the Courts: Immi-
gration and Judicial Review, 78 Texas L. Rev. 1615, 1626 (2000) (observing
that, because noncitizens cannot vote, they are particularly vulnerable to
adverse legislation).

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316 INS v. ST. CYR
Opinion of the Court
result.” Bowen v. Georgetown Univ. Hospital, 488 U. S.
204, 208 (1988).
“[This] presumption against retroactive legislation is
deeply rooted in our jurisprudence, and embodies a legal
doctrine centuries older than our Republic. Elemen-
tary considerations of fairness dictate that individuals
should have an opportunity to know what the law is and
to conform their conduct accordingly; settled expecta-
tions should not be lightly disrupted. For that reason,
the ‘principle that the legal effect of conduct should
ordinarily be assessed under the law that existed when
the conduct took place has timeless and universal human
appeal.’ Kaiser, 494 U. S., at 855 (Scalia, J., concur-
ring). In a free, dynamic society, creativity in both
commercial and artistic endeavors is fostered by a rule
of law that gives people confidence about the legal con-
sequences of their actions.” Landgraf, 511 U. S., at
265–266 (footnote omitted).
Despite the dangers inherent in retroactive legislation,
it is beyond dispute that, within constitutional limits, Con-
gress has the power to enact laws with retrospective effect.
See id., at 268. A statute may not be applied retroactively,
however, absent a clear indication from Congress that it
intended such a result. “Requiring clear intent assures that
Congress itself has affirmatively considered the potential
unfairness of retroactive application and determined that it
is an acceptable price to pay for the countervailing benefits.”
Id., at 272–273. Accordingly, the first step in determining
whether a statute has an impermissible retroactive effect is
to ascertain whether Congress has directed with the requi-
site clarity that the law be applied retrospectively. Martin
v. Hadix, 527 U. S. 343, 352 (1999).
The standard for finding such unambiguous direction is a
demanding one. “[C]ases where this Court has found truly
‘retroactive’ effect adequately authorized by statute have

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317 Cite as: 533 U. S. 289 (2001)
Opinion of the Court
involved statutory language that was so clear that it could
sustain only one interpretation.” Lindh v. Murphy, 521
U. S. 320, 328, n. 4 (1997). The INS makes several argu-
ments in favor of its position that IIRIRA achieves this
high level of clarity.
First, the INS points to the comprehensive nature of
IIRIRA’s revision of federal immigration law. “Congress’s
comprehensive establishment of a new immigration frame-
work,” the INS argues, “shows its intent that, after a tran-
sition period, the provisions of the old law should no longer
be applied at all.” Brief for Petitioner 33–34. We rejected
a similar argument, however, in Landgraf, a case that, like
this one, involved Congress’ comprehensive revision of an
important federal statute. 511 U. S., at 260–261. By itself,
the comprehensiveness of a congressional enactment says
nothing about Congress’ intentions with respect to the retro-
activity of the enactment’s individual provisions.40
The INS also points to the effective date for Title III–A
as providing a clear statement of congressional intent to
apply IIRIRA’s repeal of § 212(c) retroactively. See IIRIRA
§ 309(a), 110 Stat. 3009–625. But the mere promulgation of
an effective date for a statute does not provide sufficient as-
surance that Congress specifically considered the potential
unfairness that retroactive application would produce. For
that reason, a “statement that a statute will become effective
on a certain date does not even arguably suggest that it has
any application to conduct that occurred at an earlier date.”
Landgraf, 511 U. S., at 257.
The INS further argues that any ambiguity in Congress’
intent is wiped away by the “saving provision” in IIRIRA
§ 309(c)(1), 110 Stat. 3009–625. Brief for Petitioner 34–36.
That provision states that, for aliens whose exclusion or de-
portation proceedings began prior to the Title III–A effec-
40 The INS’ argument that refusing to apply § 304(b) retroactively cre-
ates an unrecognizable hybrid of old and new is, for the same reason,
unconvincing.

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318 INS v. ST. CYR
Opinion of the Court
tive date, “the amendments made by [Title III–A] shall not
apply, and . . . the proceedings (including judicial review
thereof) shall continue to be conducted without regard to
such amendments.” 41 This rule, however, does not com-
municate with unmistakable clarity Congress’ intention to
apply its repeal of § 212(c) retroactively. Nothing in either
§ 309(c)(1) or the statute’s legislative history even discusses
the effect of the statute on proceedings based on pre-IIRIRA
convictions that are commenced after its effective date.42
Section 309(c)(1) is best read as merely setting out the proce-
dural rules to be applied to removal proceedings pending
on the effective date of the statute. Because “[c]hanges in
procedural rules may often be applied in suits arising before
their enactment without raising concerns about retroactiv-
ity,” Landgraf, 511 U. S., at 275, it was necessary for Con-
gress to identify which set of procedures would apply in
those circumstances. As the Conference Report expressly
explained, “[§ 309(c)] provides for the transition to new pro-
cedures in the case of an alien already in exclusion or depor-
tation proceedings on the effective date.” H. R. Conf. Rep.
No. 104–828, p. 222 (1996) (emphasis added).
Another reason for declining to accept the INS’ invitation
to read § 309(c)(1) as dictating the temporal reach of IIRIRA
§ 304(b) is provided by Congress’ willingness, in other sec-
tions of IIRIRA, to indicate unambiguously its intention
41 “(c) Transition for Aliens in Proceedings.—
“(1) General rule that new rules do not apply.—Subject to the
succeeding provisions of this subsection, in the case of an alien who is in
exclusion or deportation proceedings as of the title III–A effective date—
“(A) the amendments made by this subtitle shall not apply, and
“(B) the proceedings (including judicial review thereof) shall continue
to be conducted without regard to such amendments.” § 309, 110 Stat.
3009–625.
42 The INS’ reliance, see Reply Brief for Petitioner 12, on INS v.
Aguirre-Aguirre, 526 U. S. 415, 420 (1999), is beside the point because
that decision simply observed that the new rules would not apply to a
proceeding filed before IIRIRA’s effective date.

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to apply specific provisions retroactively. IIRIRA’s amend-
ment of the definition of “aggravated felony,” for example,
clearly states that it applies with respect to “conviction[s] . . .
entered before, on, or after” the statute’s enactment date.
§ 321(b).43 As the Court of Appeals noted, the fact that Con-
43 See also IIRIRA § 321(c) (“The amendments made by this section
shall apply to actions taken on or after the date of the enactment of this
Act, regardless of when the conviction occurred . . .”); § 322(c) (“The
amendments made by subsection (a) shall apply to convictions and sen-
tences entered before, on, or after the date of the enactment of this Act”);
§ 342(b) (the amendment adding incitement of terrorist activity as a
ground for exclusion “shall apply to incitement regardless of when it
occurs”); § 344(c) (the amendment adding false claims of U. S. citizenship
as ground for removal “shall apply to representations made on or after
the date” of enactment); § 347(c) (amendments rendering alien excludable
or deportable any alien who votes unlawfully “shall apply to voting oc-
curring before, on, or after the date” of enactment); § 348(b) (amendment
providing for automatic denial of discretionary waiver from exclusion
“shall be effective on the date of the enactment . . . and shall apply in
the case of any alien who is in exclusion or deportation proceedings as
of such date unless a final administrative order in such proceedings has
been entered as of such date”); § 350(b) (amendment adding domestic vio-
lence and stalking as grounds for deportation “shall apply to convictions,
or violations of court orders, occurring after the date” of enactment);
§ 351(c) (discussing deportation for smuggling and providing that amend-
ments “shall apply to applications for waivers filed before, on, or after
the date” of enactment); § 352(b) (amendments adding renouncement of
citizenship to avoid taxation as a ground for exclusion “shall apply to
individuals who renounce United States citizenship on and after the date”
of enactment); § 380(c) (amendment imposing civil penalties on aliens for
failure to depart “shall apply to actions occurring on or after” effective
date); § 384(d)(2) (amendments adding penalties for disclosure of informa-
tion shall apply to “offenses occurring on or after the date” of enactment);
§ 531(b) (public charge considerations as a ground for exclusion “shall apply
to applications submitted on or after such date”); § 604(c) (new asylum
provision “shall apply to applications for asylum filed on or after the first
day of the first month beginning more than 180 days after the date” of
enactment). The INS argues that the Title III–B amendments containing
such express temporal provisions are unrelated to the subject matter of
§ 304(b). Brief for Petitioner 37–38. But it is clear that provisions such
as IIRIRA § 321(b), which addresses IIRIRA’s redefinition of “aggravated

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320 INS v. ST. CYR
Opinion of the Court
gress made some provisions of IIRIRA expressly applicable
to prior convictions, but did not do so in regard to § 304(b),
is an indication “that Congress did not definitively decide
the issue of § 304’s retroactive application to pre-enactment
convictions.” See 229 F. 3d, at 415. The “saving provision”
is therefore no more significant than the specification of an
effective date.
The presumption against retroactive application of ambig-
uous statutory provisions, buttressed by “the longstanding
principle of construing any lingering ambiguities in deporta-
tion statutes in favor of the alien,” INS v. Cardoza-Fonseca,
480 U. S. 421, 449 (1987), forecloses the conclusion that, in
enacting § 304(b), “Congress itself has affirmatively consid-
ered the potential unfairness of retroactive application and
determined that it is an acceptable price to pay for the coun-
tervailing benefits.” 44 Landgraf, 511 U. S., at 272–273. We
therefore proceed to the second step of Landgraf ’s retro-
activity analysis in order to determine whether depriving
removable aliens of consideration for § 212(c) relief pro-
duces an impermissible retroactive effect for aliens who,
like respondent, were convicted pursuant to a plea agree-
ment at a time when their plea would not have rendered
them ineligible for § 212(c) relief.45
felony,” deal with subjects quite closely related to § 304(b)’s elimination of
§ 212(c) relief for aliens convicted of aggravated felonies.
44 The legislative history is significant because, despite its compre-
hensive character, it contains no evidence that Congress specifically con-
sidered the question of the applicability of IIRIRA § 304(b) to pre-IIRIRA
convictions. Cf. Harrison v. PPG Industries, Inc., 446 U. S. 578, 602
(1980) (Rehnquist, J., dissenting) (“ ‘In a case where the construction of
legislative language such as this makes so sweeping and so relatively un-
orthodox a change as that made here, I think judges as well as detectives
may take into consideration the fact that a watchdog did not bark in the
night’ ”), cited in Chisom v. Roemer, 501 U. S., at 396, n. 23 (citing A. Doyle,
Silver Blaze, in The Complete Sherlock Holmes 335 (1927)).
45 The INS argues that we should extend deference under Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837
(1984), to the BIA’s interpretation of IIRIRA as applying to all de-

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321 Cite as: 533 U. S. 289 (2001)
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“The inquiry into whether a statute operates retroac-
tively demands a commonsense, functional judgment about
‘whether the new provision attaches new legal consequences
to events completed before its enactment.’ ” Martin, 527
U. S., at 357–358 (quoting Landgraf, 511 U. S., at 270). A
statute has retroactive effect when it “ ‘takes away or im-
pairs vested rights acquired under existing laws, or creates
a new obligation, imposes a new duty, or attaches a new dis-
ability, in respect to transactions or considerations already
past . . . .’ ” 46 Id., at 269 (quoting Society for Propagation
of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156)
(CC NH 1814) (Story, J.)). As we have repeatedly coun-
seled, the judgment whether a particular statute acts retro-
actively “should be informed and guided by ‘familiar consid-
erations of fair notice, reasonable reliance, and settled
expectations.’ ” Martin, 527 U. S., at 358 (quoting Land-
graf, 511 U. S., at 270).
IIRIRA’s elimination of any possibility of § 212(c) relief
for people who entered into plea agreements with the ex-
pectation that they would be eligible for such relief clearly
“ ‘attaches a new disability, in respect to transactions or
considerations already past.’ ” Id., at 269. Plea agree-
ments involve a quid pro quo between a criminal defendant
and the government. See Newton v. Rumery, 480 U. S. 386,
portation proceedings initiated after IIRIRA’s effective date. We only
defer, however, to agency interpretations of statutes that, applying the
normal “tools of statutory construction,” are ambiguous. Id., at 843, n. 9;
INS v. Cardoza-Fonseca, 480 U. S., at 447–448. Because a statute that
is ambiguous with respect to retroactive application is construed under
our precedent to be unambiguously prospective, Landgraf, 511 U. S., at
264, there is, for Chevron purposes, no ambiguity in such a statute for an
agency to resolve.
46 As we noted in Hughes Aircraft Co. v. United States ex rel. Schumer,
520 U. S. 939 (1997), this language by Justice Story “does not purport
to define the outer limit of impermissible retroactivity.” Id., at 947. In-
stead, it simply describes several “sufficient,” as opposed to “necessary,”
conditions for finding retroactivity. Ibid.

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322 INS v. ST. CYR
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393, n. 3 (1987). In exchange for some perceived benefit, de-
fendants waive several of their constitutional rights (includ-
ing the right to a trial) and grant the government numerous
“tangible benefits, such as promptly imposed punishment
without the expenditure of prosecutorial resources.” 47 Ibid.
There can be little doubt that, as a general matter, alien de-
fendants considering whether to enter into a plea agreement
are acutely aware of the immigration consequences of their
convictions.48 See Magana-Pizano v. INS, 200 F. 3d 603,
612 (CA9 1999) (“That an alien charged with a crime . . .
would factor the immigration consequences of conviction
in deciding whether to plead or proceed to trial is well-
documented”); see also 3 Bender, Criminal Defense Tech-
niques §§ 60A.01, 60A.02[2] (1999) (“ ‘Preserving the client’s
right to remain in the United States may be more important
to the client than any potential jail sentence’ ” (quoted in
Brief for National Association of Criminal Defense Law-
47 “If every criminal charge were subjected to a full-scale trial, the
States and the Federal Government would need to multiply by many
times the number of judges and court facilities.” Santobello v. New York,
404 U. S. 257, 260 (1971).
48 Many States, including Connecticut, the State in which respondent
pleaded guilty, require that trial judges advise defendants that immigra-
tion consequences may result from accepting a plea agreement. See Cal.
Penal Code Ann. § 1016.5 (West 1985); Conn. Gen. Stat. § 54–1j (2001); D. C.
Code Ann. § 16–713 (1981–1997); Fla. Rule Crim. Proc. 3.172(c)(8) (1999);
Ga. Code Ann. § 17–7–93 (1997); Haw. Rev. Stat. § 802E–2 (1993); Md. Rule
4–242 (2001); Mass. Gen. Laws § 278:29D (1996 Supp.); Minn. Rule Crim.
Proc. 15.01 (2000); Mont. Code Ann. § 46–12–210 (1997); N. M. Rule Crim.
Form 9–406 (2001); N. Y. Crim. Proc. Law § 220.50(7) (McKinney 2001
Cum. Supp. Pamphlet); N. C. Gen. Stat. § 15A–1022 (1999); Ohio Rev. Code
Ann. § 2943.031 (1997); Ore. Rev. Stat. § 135.385 (1997); R. I. Gen. Laws
§ 12–12–22 (2000); Tex. Code Crim. Proc. Ann., Art. 26.13(a)(4) (Vernon
1989 and Supp. 2001); Wash. Rev. Code § 10.40.200 (1990); Wis. Stat.
§ 971.08 (1993–1994). And the American Bar Association’s Standards for
Criminal Justice provide that, if a defendant will face deportation as a
result of a conviction, defense counsel “should fully advise the defendant
of these consequences.” 3 ABA Standards for Criminal Justice 14–3.2
Comment, 75 (2d ed. 1982).

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yers et al. as Amici Curiae 13)). Given the frequency with
which § 212(c) relief was granted in the years leading up to
AEDPA and IIRIRA,49 preserving the possibility of such re-
lief would have been one of the principal benefits sought by
defendants deciding whether to accept a plea offer or instead
to proceed to trial.50
The case of Charles Jideonwo, a petitioner in a parallel
litigation in the Seventh Circuit, is instructive. Charged in
1994 with violating federal narcotics law, Jideonwo entered
into extensive plea negotiations with the Government, the
sole purpose of which was to ensure that “ ‘he got less
than five years to avoid what would have been a statu-
tory bar on 212(c) relief.’ ” Jideonwo v. INS, 224 F. 3d 692,
699 (CA7 2000) (quoting the Immigration Judge’s findings of
fact). The potential for unfairness in the retroactive appli-
cation of IIRIRA § 304(b) to people like Jideonwo and St. Cyr
is significant and manifest. Relying upon settled practice,
the advice of counsel, and perhaps even assurances in open
court that the entry of the plea would not foreclose § 212(c)
relief, a great number of defendants in Jideonwo’s and
St. Cyr’s position agreed to plead guilty.51 Now that prose-
cutors have received the benefit of these plea agreements,
agreements that were likely facilitated by the aliens’ belief
in their continued eligibility for § 212(c) relief, it would surely
be contrary to “familiar considerations of fair notice, reason-
able reliance, and settled expectations,” Landgraf, 511 U. S.,
49 See n. 5, supra.
50 Even if the defendant were not initially aware of § 212(c), compe-
tent defense counsel, following the advice of numerous practice guides,
would have advised him concerning the provision’s importance. See Brief
for National Association of Criminal Defense Lawyers et al. as Amici
Curiae 6–8.
51 Ninety percent of criminal convictions today are obtained by guilty
plea. See U. S. Dept. of Justice, Office of Justice Programs, Bureau of
Justice Statistics, Section 5: Judicial Processing of Defendants, in United
States Sentencing Commission, 1999 Sourcebook of Criminal Justice Sta-
tistics (2000) (Tables 5.30, 5.51).

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324 INS v. ST. CYR
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at 270, to hold that IIRIRA’s subsequent restrictions deprive
them of any possibility of such relief.52
The INS argues that deportation proceedings (and the
Attorney General’s discretionary power to grant relief from
deportation) are “inherently prospective” and that, as a
result, application of the law of deportation can never have
a retroactive effect. Such categorical arguments are not
particularly helpful in undertaking Landgraf ’s common-
sense, functional retroactivity analysis. See Martin, 527
U. S., at 359. Moreover, although we have characterized
deportation as “look[ing] prospectively to the respondent’s
right to remain in this country in the future,” INS v. Lopez-
Mendoza, 468 U. S. 1032, 1038 (1984), we have done so in
order to reject the argument that deportation is punish-
ment for past behavior and that deportation proceedings
are therefore subject to the “various protections that apply
in the context of a criminal trial.” Ibid. As our cases make
clear, the presumption against retroactivity applies far be-
yond the confines of the criminal law. See Landgraf, 511
U. S., at 272. And our mere statement that deportation is
not punishment for past crimes does not mean that we can-
not consider an alien’s reasonable reliance on the continued
availability of discretionary relief from deportation when
deciding whether the elimination of such relief has a retro-
active effect.53
52 The significance of that reliance is obvious to those who have par-
ticipated in the exercise of the discretion that was previously available to
delegates of the Attorney General under § 212(c). See In re Soriano, 16
BIA Immig. Rptr. B1–227, B1–238 to B1–239 (1996) (Rosenberg, Board
Member, concurring and dissenting) (“I find compelling policy and prac-
tical reasons to go beyond such a limited interpretation as the one the
majority proposes in this case. All of these people, and no doubt many
others, had settled expectations to which they conformed their conduct”).
53 We are equally unconvinced by the INS’ comparison of the elimination
of § 212(c) relief for people like St. Cyr with the Clayton Act’s elimina-
tion of federal courts’ power to enjoin peaceful labor actions. In Ameri-
can Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184
(1921), and Duplex Printing Press Co. v. Deering, 254 U. S. 443, 464 (1921),

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Opinion of the Court
Finally, the fact that § 212(c) relief is discretionary does
not affect the propriety of our conclusion. There is a clear
difference, for the purposes of retroactivity analysis, be-
tween facing possible deportation and facing certain de-
portation. Cf. Hughes Aircraft Co. v. United States ex rel.
Schumer, 520 U. S. 939, 949 (1997) (an increased likelihood
of facing a qui tam action constitutes an impermissible ret-
roactive effect for the defendant); Lindsey v. Washington,
301 U. S. 397, 401 (1937) (“Removal of the possibility of a
sentence of less than fifteen years . . . operates to [de-
fendants’] detriment” (emphasis added)). Prior to AEDPA
and IIRIRA, aliens like St. Cyr had a significant likelihood
of receiving § 212(c) relief.54 Because respondent, and other
aliens like him, almost certainly relied upon that likelihood
in deciding whether to forgo their right to a trial, the elimi-
nation of any possibility of § 212(c) relief by IIRIRA has an
obvious and severe retroactive effect.55
we applied the Clayton Act’s limitations on injunctive relief to cases
pending at the time of the statute’s passage. But unlike the elimination
of § 212(c) relief in this case, which depends upon an alien’s decision to
plead guilty to an “aggravated felony,” the deprivation of the District
Court’s power to grant injunctive relief at issue in Duplex Printing did
not in any way result from or depend on the past action of the party
seeking the injunction. Thus, it could not plausibly have been argued
that the Clayton Act attached a “ ‘new disability, in respect to transactions
or considerations already past.’ ” Landgraf, 511 U. S., at 269.
54 See n. 5, supra.
55 The INS cites several cases affirming Congress’ power to retroactively
unsettle such expectations in the immigration context. See Brief for Peti-
tioner 40–41, and n. 21. But our recognition that Congress has the power
to act retrospectively in the immigration context sheds no light on the
question at issue at this stage of the Landgraf analysis: whether a particu-
lar statute in fact has such a retroactive effect. Moreover, our decision
today is fully consistent with a recognition of Congress’ power to act retro-
spectively. We simply assert, as we have consistently done in the past,
that in legislating retroactively, Congress must make its intention plain.
Similarly, the fact that Congress has the power to alter the rights of
resident aliens to remain in the United States is not determinative of the
question whether a particular statute has a retroactive effect. See Chew
Heong v. United States, 112 U. S. 536 (1884). Applying a statute barring

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326 INS v. ST. CYR
Scalia, J., dissenting
We find nothing in IIRIRA unmistakably indicating that
Congress considered the question whether to apply its repeal
of § 212(c) retroactively to such aliens. We therefore hold
that § 212(c) relief remains available for aliens, like respond-
ent, whose convictions were obtained through plea agree-
ments and who, notwithstanding those convictions, would
have been eligible for § 212(c) relief at the time of their plea
under the law then in effect.
The judgment is affirmed.
It is so ordered.
Justice O’Connor, dissenting.
I join Parts I and III of Justice Scalia’s dissenting opin-
ion in this case. I do not join Part II because I believe that,
assuming, arguendo, that the Suspension Clause guarantees
some minimum extent of habeas review, the right asserted
by the alien in this case falls outside the scope of that review
for the reasons explained by Justice Scalia in Part II–B
of his dissenting opinion. The question whether the Sus-
pension Clause assures habeas jurisdiction in this particular
case properly is resolved on this ground alone, and there is
no need to say more.
Justice Scalia, with whom The Chief Justice and
Justice Thomas join, and with whom Justice O’Connor
joins as to Parts I and III, dissenting.
The Court today finds ambiguity in the utterly clear lan-
guage of a statute that forbids the district court (and all
Chinese nationals from reentering the country without a certificate pre-
pared when they left to people who exited the country before the statute
went into effect would have retroactively unsettled their reliance on the
state of the law when they departed. See id., at 559. So too, applying
IIRIRA § 304(b) to aliens who pleaded guilty or nolo contendere to crimes
on the understanding that, in so doing, they would retain the ability to
seek discretionary § 212(c) relief would retroactively unsettle their reliance
on the state of the law at the time of their plea agreement.

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Scalia, J., dissenting
other courts) to entertain the claims of aliens such as re-
spondent St. Cyr, who have been found deportable by reason
of their criminal acts. It fabricates a superclear statement,
“magic words” requirement for the congressional expres-
sion of such an intent, unjustified in law and unparalleled in
any other area of our jurisprudence. And as the fruit of its
labors, it brings forth a version of the statute that affords
criminal aliens more opportunities for delay-inducing judi-
cial review than are afforded to noncriminal aliens, or even
than were afforded to criminal aliens prior to this legislation
concededly designed to expedite their removal. Because it
is clear that the law deprives us of jurisdiction to entertain
this suit, I respectfully dissent.
I
In categorical terms that admit of no exception, the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), 110 Stat. 3009–546, unambiguously repeals
the application of 28 U. S. C. § 2241 (the general habeas
corpus provision), and of all other provisions for judicial re-
view, to deportation challenges brought by certain kinds
of criminal aliens. This would have been readily appar-
ent to the reader, had the Court at the outset of its opin-
ion set forth the relevant provisions of IIRIRA and of
its statutory predecessor, the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. I will
begin by supplying that deficiency, and explaining IIRIRA’s
jurisdictional scheme. It begins with what we have called
a channeling or “ ‘zipper’ clause,” Reno v. American-Arab
Anti-Discrimination Comm., 525 U. S. 471, 483 (1999)—
namely, 8 U. S. C. § 1252(b)(9) (1994 ed., Supp. V). This
provision, entitled “Consolidation of questions for judicial
review,” provides as follows:
“Judicial review of all questions of law and fact, in-
cluding interpretation and application of constitutional
and statutory provisions, arising from any action taken

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328 INS v. ST. CYR
Scalia, J., dissenting
or proceeding brought to remove an alien from the
United States under this subchapter shall be avail-
able only in judicial review of a final order under this
section.” (Emphases added.)
In other words, if any review is available of any “questio[n]
of law . . . arising from any action taken or proceeding
brought to remove an alien from the United States under
this subchapter,” it is available “only in judicial review of a
final order under this section [§ 1252].” What kind of review
does that section provide? That is set forth in § 1252(a)(1),
which states:
“Judicial review of a final order of removal (other than
an order of removal without a hearing pursuant to [the
expedited-removal provisions for undocumented aliens
arriving at the border found in] section 1225(b)(1) of
this title) is governed only by chapter 158 of title 28
[the Hobbs Act], except as provided in subsection (b)
of this section [which modifies some of the Hobbs Act
provisions] and except that the court may not order
the taking of additional evidence under section 2347(c)
of [Title 28].”
In other words, if judicial review is available, it consists only
of the modified Hobbs Act review specified in § 1252(a)(1).
In some cases (including, as it happens, the one before us),
there can be no review at all, because IIRIRA categorically
and unequivocally rules out judicial review of challenges
to deportation brought by certain kinds of criminal aliens.
Section 1252(a)(2)(C) provides:
“Notwithstanding any other provision of law, no court
shall have jurisdiction to review any final order of re-
moval against an alien who is removable by reason of
having committed [one or more enumerated] criminal
offense[s] [including drug-trafficking offenses of the sort
of which respondent had been convicted].” (Emphases
added.)

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Scalia, J., dissenting
Finally, the pre-IIRIRA antecedent to the foregoing pro-
visions—AEDPA § 401(e)—and the statutory background
against which that was enacted, confirm that § 2241 habeas
review, in the district court or elsewhere, has been unequivo-
cally repealed. In 1961, Congress amended the Immigration
and Nationality Act of 1952 (INA), 66 Stat. 163, by directing
that the procedure for Hobbs Act review in the courts of
appeals “shall apply to, and shall be the sole and exclusive
procedure for, the judicial review of all final orders of depor-
tation” under the INA. 8 U. S. C. § 1105a(a) (repealed Sept.
30, 1996) (emphasis added). Like 8 U. S. C. § 1252(a)(2)(C)
(1994 ed., Supp. V), this provision squarely prohibited § 2241
district-court habeas review. At the same time that it en-
acted this provision, however, the 1961 Congress enacted a
specific exception: “any alien held in custody pursuant to
an order of deportation may obtain judicial review thereof
by habeas corpus proceedings,” 8 U. S. C. § 1105a(a)(10) (1994
ed.). (This would of course have been surplusage had § 2241
habeas review not been covered by the “sole and exclusive
procedure” provision.) Section 401(e) of AEDPA repealed
this narrow exception, and there is no doubt what the re-
peal was thought to accomplish: the provision was entitled
“Elimination of Custody Review by Habeas Corpus.”
110 Stat. 1268. It gave universal preclusive effect to the
“sole and exclusive procedure” language of § 1105a(a). And
it is this regime that IIRIRA has carried forward.
The Court’s efforts to derive ambiguity from this utmost
clarity are unconvincing. First, the Court argues that
§§ 1252(a)(2)(C) and 1252(b)(9) are not as clear as one might
think—that, even though they are sufficient to repeal the
jurisdiction of the courts of appeals, see Calcano-Martinez
v. INS, post, at 351–352,1 they do not cover habeas jurisdic-
tion in the district court, since, “[i]n the immigration context,
‘judicial review’ and ‘habeas corpus’ have historically dis-
1 In the course of this opinion I shall refer to some of the Court’s analysis
in this companion case; the two opinions are intertwined.

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330 INS v. ST. CYR
Scalia, J., dissenting
tinct meanings, ” an te, at 311, 312, n. 35. Of course
§ 1252(a)(2)(C) does not even use the term “judicial review”
(it says “jurisdiction to review”)—but let us make believe
it does. The Court’s contention that in this statute it does
not include habeas corpus is decisively refuted by the lan-
guage of § 1252(e)(2), enacted along with §§ 1252(a)(2)(C) and
1252(b)(9): “Judicial review of any determination made
under section 1225(b)(1) of this title [governing review of
expedited removal orders against undocumented aliens ar-
riving at the border] is available in habeas corpus pro-
ceedings . . . .” (Emphases added.) It is hard to imagine
how Congress could have made it any clearer that, when
it used the term “judicial review” in IIRIRA, it included
judicial review through habeas corpus. Research into the
“historical” usage of the term “judicial review” is thus quite
beside the point.
But the Court is demonstrably wrong about that as well.
Before IIRIRA was enacted, from 1961 to 1996, the govern-
ing immigration statutes unquestionably treated “judicial
review” as encompassing review by habeas corpus. As dis-
cussed earlier, 8 U. S. C. § 1105a (1994 ed.) made Hobbs Act
review “the sole and exclusive procedure for, the judicial
review of all final orders of deportation” (emphasis added),
but created (in subsection (a)(10)) a limited exception for
habeas corpus review. Section 1105a was entitled “Judicial
review of orders of deportation and exclusion” (emphasis
added), and the exception for habeas corpus stated that “any
alien held in custody pursuant to an order of deportation
may obtain judicial review thereof by habeas corpus pro-
ceedings,” § 1105a(a)(10) (emphases added). Apart from this
prior statutory usage, many of our own immigration cases
belie the Court’s suggestion that the term “judicial review,”
when used in the immigration context, does not include
review by habeas corpus. See, e. g., United States v.
Mendoza-Lopez, 481 U. S. 828, 836–837 (1987) (“[A]ny alien
held in custody pursuant to an order of deportation may ob-

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331 Cite as: 533 U. S. 289 (2001)
Scalia, J., dissenting
tain judicial review of that order in a habeas corpus pro-
ceeding” (emphases added)); Shaughnessy v. Pedreiro, 349
U. S. 48, 52 (1955) (“Our holding is that there is a right of
judicial review of deportation orders other than by habeas
corpus . . .” (emphases added)); see also id., at 49.
The only support the Court offers in support of the as-
serted “longstanding distinction between ‘judicial review’
and ‘habeas,’ ” ante, at 312, n. 35, is language from a single
opinion of this Court, Heikkila v. Barber, 345 U. S. 229
(1953).2 There, we “differentiate[d]” “habeas corpus” from
“judicial review as that term is used in the Administra-
tive Procedure Act.” Id., at 236 (emphasis added). But
that simply asserts that habeas corpus review is different
from ordinary APA review, which no one doubts. It does
not assert that habeas corpus review is not judicial review
at all. Nowhere does Heikkila make such an implausible
contention.3
2 The recent Circuit authorities cited by the Court, which postdate
IIRIRA, see Mahadeo v. Reno, 226 F. 3d 3, 12 (CA1 2000); and Flores-
Miramontes v. INS, 212 F. 3d 1133, 1140 (CA9 2000)), cited ante, at 314,
hardly demonstrate any historical usage upon which IIRIRA was based.
Anyway, these cases rely for their analysis upon a third Court of Appeals
decision—Sandoval v. Reno, 166 F. 3d 225, 235 (CA3 1999)—which simply
relies on the passage from Heikkila under discussion.
3 The older, pre-1961 judicial interpretations relied upon by the Court,
see ante, at 312, are similarly unavailing. Ekiu v. United States, 142
U. S. 651 (1892), never purported to distinguish “judicial review” from
habeas, and the Court’s attempt to extract such a distinction from the
opinion is unpersuasive. Ekiu did state that the statute “prevent[ed]
the question of an alien immigrant’s right to land, when once decided
adversely by an inspector, acting within the jurisdiction conferred upon
him, from being impeached or reviewed,” id., at 663 (emphasis added; itali-
cized words quoted ante, at 312); but the clear implication was that the
question whether the inspector was “acting within the jurisdiction con-
ferred upon him” was reviewable. The distinction pertained, in short, to
the scope of judicial review on habeas—not to whether judicial review was
available. Terlinden v. Ames, 184 U. S. 270, 278 (1902), likewise drew no
distinction between “judicial review” and habeas; it simply stated that the
extradition statute “gives no right of review to be exercised by any court

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332 INS v. ST. CYR
Scalia, J., dissenting
The Cour t next contends that the zipper clause,
§ 1252(b)(9), “by its own terms, does not bar” § 2241 district-
court habeas review of removal orders, ante, at 313, because
the opening sentence of subsection (b) states that “[w]ith re-
spect to review of an order of removal under subsection
(a)(1) of this section, the following requirements apply . . . .”
(Emphasis added.) But in the broad sense, § 1252(b)(9) does
“apply” “to review of an order of removal under subsection
(a)(1),” because it mandates that “review of all questions of
law and fact . . . arising from any action taken or proceed-
ing brought to remove an alien from the United States
under this subchapter” must take place in connection
with such review. This is “application” enough—and to in-
sist that subsection (b)(9) be given effect only within the
review of removal orders that takes place under subsection
(a)(1), is to render it meaningless. Moreover, other of the
numbered subparagraphs of subsection (b) make clear that
the introductory sentence does not at all operate as a limita-
tion upon what follows. Subsection (b)(7) specifies the pro-
cedure by which “a defendant in a criminal proceeding”
charged with failing to depart after being ordered to do so
may contest “the validity of [a removal] order” before trial;
and subsection (b)(8) prescribes some of the prerogatives
and responsibilities of the Attorney General and the alien
after entry of a final removal order. These provisions have
no effect if they must apply (even in the broad sense that
subsection (b)(9) can be said to apply) “to review of an order
of removal under subsection (a)(1).”
Unquestionably, unambiguously, and unmistakably,
IIRIRA expressly supersedes § 2241’s general provision for
habeas jurisdiction. The Court asserts that Felker v. Tur-
pin, 518 U. S. 651 (1996), and Ex parte Yerger, 8 Wall. 85
or judicial officer, and what cannot be done directly [under the extradition
statute] cannot be done indirectly through the writ of habeas corpus.”
Far from saying that habeas is not a form of judicial review, it says that
habeas is an indirect means of review.

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333 Cite as: 533 U. S. 289 (2001)
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(1869), reflect a “longstanding rule requiring a clear state-
ment of congressional intent to repeal habeas jurisdiction,”
ante, at 298. They do no such thing. Those cases simply
applied the general principle—not unique to habeas—that
“[r]epeals by implication are not favored.” Felker, supra, at
660; Yerger, supra, at 105. Felker held that a statute which
by its terms prohibited only further review by this Court
(or by an en banc court of appeals) of a court-of-appeals pan-
el’s “ ‘grant or denial of . . . authorization . . . to file a second
or successive [habeas] application,’ ” 518 U. S., at 657 (quoting
28 U. S. C. § 2244(b)(3)(E) (1994 ed., Supp. II)), should not
be read to imply the repeal of this Court’s separate and
distinct “authority [under 28 U. S. C. § 2241 and 28 U. S. C.
§ 2254 (1994 ed. and Supp. V)] to hear habeas petitions filed
as original matters in this Court,” 518 U. S., at 661. Yerger
held that an 1868 Act that by its terms “repeal[ed] only so
much of the act of 1867 as authorized appeals, or the exercise
of appellate jurisdiction by this court,” should be read to
“reach no [further than] the act of 1867,” and did not repeal
by implication the appellate jurisdiction conferred by the Ju-
diciary Act of 1789 and other pre-1867 enactments. 8 Wall.,
at 105. In the present case, unlike in Felker and Yerger,
none of the statutory provisions relied upon—§ 1252(a)(2)(C),
§ 1252(b)(9), or 8 U. S. C. § 1105a(a) (1994 ed.)—requires us to
imply from one statutory provision the repeal of another.
All by their terms prohibit the judicial review at issue in
this case.
The Cour t i nsists, however, that si nce “ [n]either
[§ 1252(a)(1) nor § 1252(a)(2)(C)] explicitly mentions habeas,
or 28 U. S. C. § 2241,” “neither provision speaks with suffi-
cient clarity to bar jurisdiction pursuant to the general ha-
beas statute.” Ante, at 312–313. Even in those areas of
our jurisprudence where we have adopted a “clear state-
ment” rule (notably, the sovereign immunity cases to which
the Court adverts, ante, at 299, n. 10), clear statement has
never meant the kind of magic words demanded by the Court

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334 INS v. ST. CYR
Scalia, J., dissenting
today—explicit reference to habeas or to § 2241—rather than
reference to “judicial review” in a statute that explicitly calls
habeas corpus a form of judicial review. In Gregory v. Ash-
croft, 501 U. S. 452, 467 (1991), we said:
“This [the Court’s clear-statement requirement] does
not mean that the [Age Discrimination in Employment]
Act must mention [state] judges explicitly, though it
does not. Cf. Dellmuth v. Muth, 491 U. S. 223, 233
(1989) (Scalia, J., concurring). Rather, it must be plain
to anyone reading the Act that it covers judges.”
In Gregory, as in United States v. Nordic Village, Inc., 503
U. S. 30, 34–35 (1992), and Atascadero State Hospital v.
Scanlon, 473 U. S. 234, 241, 246 (1985), we held that the
clear-statement requirement was not met, not because there
was no explicit reference to the Eleventh Amendment, but
because the statutory intent to eliminate state sovereign
immunity was not clear. For the reasons discussed above,
the intent to eliminate habeas jurisdiction in the present case
is entirely clear, and that is all that is required.
It has happened before—too frequently, alas—that courts
have distorted plain statutory text in order to produce a
“more sensible” result. The unique accomplishment of to-
day’s opinion is that the result it produces is as far removed
from what is sensible as its statutory construction is from
the language of the text. One would have to study our stat-
ute books for a long time to come up with a more unlikely
disposition. By authorizing § 2241 habeas review in the dis-
trict court but foreclosing review in the court of appeals,
see Calcano-Martinez, post, at 351–352, the Court’s interpre-
tation routes all legal challenges to removal orders brought
by criminal aliens to the district court, to be adjudicated
under that court’s § 2241 habeas authority, which specifies
no time limits. After review by that court, criminal aliens
will presumably have an appeal as of right to the court of
appeals, and can then petition this Court for a writ of cer-

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335 Cite as: 533 U. S. 289 (2001)
Scalia, J., dissenting
tiorari. In contrast, noncriminal aliens seeking to challenge
their removal orders—for example, those charged with hav-
ing been inadmissible at the time of entry, with having failed
to maintain their nonimmigrant status, with having pro-
cured a visa through a marriage that was not bona fide, or
with having become, within five years after the date of entry,
a public charge, see 8 U. S. C. §§ 1227(a)(1)(A), (a)(1)(C),
(a)(1)(G), (a)(5) (1994 ed., Supp. V)—will still presumably
be required to proceed directly to the court of appeals by
way of petition for review, under the restrictive modified
Hobbs Act review provisions set forth in § 1252(a)(1), includ-
ing the 30-day filing deadline, see § 1252(b)(1). In fact, prior
to the enactment of IIRIRA, criminal aliens also had to fol-
low this procedure for immediate modified Hobbs Act review
in the court of appeals. See 8 U. S. C. § 1105a(a) (1994 ed.).
The Court has therefore succeeded in perverting a statu-
tory scheme designed to expedite the removal of criminal
aliens into one that now affords them more opportunities for
(and layers of) judicial review (and hence more opportunities
for delay) than are afforded non-criminal aliens—and more
than were afforded criminal aliens prior to the enactment of
IIRIRA.4 This outcome speaks for itself; no Congress ever
imagined it.
To excuse the violence it does to the statutory text, the
Court invokes the doctrine of constitutional doubt, which
it asserts is raised by the Suspension Clause, U. S. Const.,
Art. I, § 9, cl. 2. This uses one distortion to justify another,
transmogrifying a doctrine designed to maintain “a just re-
4 The Court disputes this conclusion by observing that “the scope of
review on habeas is considerably more limited than on APA-style review,”
ante, at 314, n. 38 (a statement, by the way, that confirms our contention
that habeas is, along with the Administrative Procedure Act (APA), one
form of judicial review). It is more limited, to be sure—but not “con-
siderably more limited” in any respect that would disprove the fact that
criminal aliens are much better off than others. In all the many cases
that (like the present one) involve “question[s] of law,” ibid., the Court’s
statutory misconstruction gives criminal aliens a preferred position.

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336 INS v. ST. CYR
Scalia, J., dissenting
spect for the legislature,” Ex parte Randolph, 20 F. Cas.
242, 254 (No. 11,558) (CC Va. 1833) (Marshall, C. J., on cir-
cuit), into a means of thwarting the clearly expressed intent
of the legislature. The doctrine of constitutional doubt is
meant to effectuate, not to subvert, congressional intent, by
giving ambiguous provisions a meaning that will avoid con-
stitutional peril, and that will conform with Congress’s pre-
sumed intent not to enact measures of dubious validity. The
condition precedent for application of the doctrine is that the
statute can reasonably be construed to avoid the constitu-
tional difficulty. See, e. g., Miller v. French, 530 U. S. 327,
341 (2000) (“ ‘We cannot press statutory construction “to the
point of disingenuous evasion” even to avoid a constitutional
question’ ” (quoting United States v. Locke, 471 U. S. 84, 96
(1985), in turn quoting George Moore Ice Cream Co. v. Rose,
289 U. S. 373, 379 (1933))); Salinas v. United States, 522 U. S.
52, 60 (1997) (quoting Seminole Tribe of Fla. v. Florida, 517
U. S. 44, 57, n. 9 (1996)). It is a device for interpreting what
the statute says—not for ignoring what the statute says
in order to avoid the trouble of determining whether what
it says is unconstitutional. For the reasons I have set forth
above, it is crystal clear that the statute before us here
bars criminal aliens from obtaining judicial review, including
§ 2241 district-court review, of their removal orders. It is
therefore also crystal clear that the doctrine of constitutional
doubt has no application.
In the remainder of this opinion I address the question
the Court should have addressed: Whether these provisions
of IIRIRA are unconstitutional.
II
A
The Suspension Clause of the Constitution, Art. I, § 9, cl. 2,
provides as follows:

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337 Cite as: 533 U. S. 289 (2001)
Scalia, J., dissenting
“The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or In-
vasion the public Safety may require it.”
A straightforward reading of this text discloses that it does
not guarantee any content to (or even the existence of) the
writ of habeas corpus, but merely provides that the writ
shall not (except in case of rebellion or invasion) be sus-
pended. See R. Fallon, D. Meltzer, & D. Shapiro, Hart &
Wechsler’s The Federal Courts and the Federal System 1369
(4th ed. 1996) (“[T]he text [of the Suspension Clause] does
not confer a right to habeas relief, but merely sets forth
when the ‘Privilege of the Writ’ may be suspended”). In-
deed, that was precisely the objection expressed by four
of the state ratifying conventions—that the Constitution
failed affirmatively to guarantee a right to habeas corpus.
See Collings, Habeas Corpus for Convicts—Constitutional
Right or Legislative Grace?, 40 Calif. L. Rev. 335, 340, and
nn. 39–41 (1952) (citing 1 J. Elliott, Debates on the Federal
Constitution 328 (2d ed. 1836) (New York); 3 id., at 658 (Vir-
ginia); 4 id., at 243 (North Carolina); 1 id., at 334 (Rhode
Island)).
To “suspend” the writ was not to fail to enact it, much
less to refuse to accord it particular content. Noah Webster,
in his American Dictionary of the English Language, de-
fined it—with patriotic allusion to the constitutional text—
as “[t]o cause to cease for a time from operation or effect; as,
to suspend the habeas corpus act.” Vol. 2, p. 86 (1828 ed.).
See also N. Bailey, An Universal Etymological English Dic-
tionary (1789) (“To Suspend [in Law] signifies a temporal
stop of a man’s right”); 2 S. Johnson, A Dictionary of the
English Language 1958 (1773) (“to make to stop for a time”).
This was a distinct abuse of majority power, and one that
had manifested itself often in the Framers’ experience: tem-
porarily but entirely eliminating the “Privilege of the Writ”
for a certain geographic area or areas, or for a certain class

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338 INS v. ST. CYR
Scalia, J., dissenting
or classes of individuals. Suspension Acts had been adopted
(and many more proposed) both in this country and in Eng-
land during the late 18th century, see B. Mian, American
Habeas Corpus: Law, History, and Politics 109–127 (1984)—
including a 7-month suspension by the Massachusetts As-
sembly during Shay’s Rebellion in 1787, id., at 117. Typical
of the genre was the prescription by the Statute of 1794,
34 Geo. 3, c. 54, § 2, that “ ‘[an Act for preventing wrongous
imprisonment, and against undue delays in trials], insofar as
the same may be construed to relate to the cases of Treason
and suspicion of Treason, be suspended [for one year] . . . .’ ”
Mian, supra, at 110. See also 16 Annals of Cong. 44, 402–425
(1852) (recording the debate on a bill, reported to the House
of Representatives from the Senate on January 26, 1807, and
ultimately rejected, to “suspen[d], for and during the term
of three months,” “the privilege of the writ of habeas
corpus” for “any person or persons, charged on oath with
treason, misprision of treason,” and other specified offenses
arising out of the Aaron Burr conspiracy).
In the present case, of course, Congress has not tempo-
rarily withheld operation of the writ, but has permanently
altered its content. That is, to be sure, an act subject to
majoritarian abuse, as is Congress’s framing (or its determi-
nation not to frame) a habeas statute in the first place. But
that is not the majoritarian abuse against which the Suspen-
sion Clause was directed. It is no more irrational to guard
against the common and well known “suspension” abuse,
without guaranteeing any particular habeas right that en-
joys immunity from suspension, than it is, in the Equal Pro-
tection Clause, to guard against unequal application of the
laws, without guaranteeing any particular law which enjoys
that protection. And it is no more acceptable for this Court
to write a habeas law, in order that the Suspension Clause
might have some effect, than it would be for this Court to
write other laws, in order that the Equal Protection Clause
might have some effect.

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Scalia, J., dissenting
The Court cites many cases which it says establish that
it is a “serious and difficult constitutional issue,” ante, at 305,
whether the Suspension Clause prohibits the elimination of
habeas jurisdiction effected by IIRIRA. Every one of those
cases, however, pertains not to the meaning of the Suspen-
sion Clause, but to the content of the habeas corpus provision
of the United States Code, which is quite a different matter.
The closest the Court can come is a statement in one of those
cases to the effect that the Immigration Act of 1917 “had
the effect of precluding judicial intervention in deportation
cases except insofar as it was required by the Constitution,”
Heikkila, 345 U. S., at 234–235. That statement (1) was
pure dictum, since the Court went on to hold that the judi-
cial review of petitioner’s deportation order was unavailable;
(2) does not specify to what extent judicial review was “re-
quired by the Constitution,” which could (as far as the
Court’s holding was concerned) be zero; and, most important
of all, (3) does not refer to the Suspension Clause, so could
well have had in mind the due process limitations upon the
procedures for determining deportability that our later cases
establish, see Part III, infra.
There is, however, another Supreme Court dictum that is
unquestionably in point—an unusually authoritative one at
that, since it was written by Chief Justice Marshall in 1807.
It supports precisely the interpretation of the Suspension
Clause I have set forth above. In Ex parte Bollman,
4 Cranch 75, one of the cases arising out of the Burr con-
spiracy, the issue presented was whether the Supreme Court
had the power to issue a writ of habeas corpus for the re-
lease of two prisoners held for trial under warrant of the
Circuit Court of the District of Columbia. Counsel for the
detainees asserted not only statutory authority for issuance
of the writ, but inherent power. See id., at 77–93. The
Court would have nothing to do with that, whether under
Article III or any other provision. While acknowledging
an inherent power of the courts “over their own officers, or

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340 INS v. ST. CYR
Scalia, J., dissenting
to protect themselves, and their members, from being dis-
turbed in the exercise of their functions,” Marshall says that
“the power of taking cognizance of any question between
individuals, or between the government and individuals,”
“must be given by written law.
“The inquiry, therefore, on this motion will be,
whether by any statute compatible with the constitu-
tion of the United States, the power to award a writ of
habeas corpus, in such a case as that of Erick Bollman
and Samuel Swartwout, has been given to this court.”
Id., at 94.
In the ensuing discussion of the Judiciary Act of 1789, the
opinion specifically addresses the Suspension Clause—not
invoking it as a source of habeas jurisdiction, but to the
contrary pointing out that without legislated habeas juris-
diction the Suspension Clause would have no effect.
“It may be worthy of remark, that this act was passed
by the first congress of the United States, sitting under
a constitution which had declared ‘that the privilege of
the writ of habeas corpus should not be suspended, un-
less when, in cases of rebellion or invasion, the public
safety might require it.’
“Acting under the immediate influence of this injunc-
tion, they must have felt, with peculiar force, the obli-
gation of providing efficient means by which this great
constitutional privilege should receive life and activity;
for if the means be not in existence, the privilege itself
would be lost, although no law for its suspension should
be enacted. Under the impression of this obligation,
they give to all the courts the power of awarding writs
of habeas corpus.” Id., at 95.5
5 The Court claims that I “rea[d] into Chief Justice Marshall’s opinion
in Ex parte Bollman . . . support for a proposition that the Chief Justice
did not endorse, either explicitly or implicitly,” ante, at 304, n. 24. Its
support for this claim is a highly selective quotation from the opinion,

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341 Cite as: 533 U. S. 289 (2001)
Scalia, J., dissenting
There is no more reason for us to believe, than there was
for the Marshall Court to believe, that the Suspension Clause
means anything other than what it says.
B
Even if one were to assume that the Suspension Clause,
despite its text and the Marshall Court’s understanding,
guarantees some constitutional minimum of habeas relief,
that minimum would assuredly not embrace the rarified
right asserted here: the right to judicial compulsion of the
exercise of Executive discretion (which may be exercised
favorably or unfavorably) regarding a prisoner’s release. If
one reads the Suspension Clause as a guarantee of habeas
relief, the obvious question presented is: What habeas relief?
There are only two alternatives, the first of which is too
absurd to be seriously entertained. It could be contended
that Congress “suspends” the writ whenever it eliminates
any prior ground for the writ that it adopted. Thus, if
Congress should ever (in the view of this Court) have au-
thorized immediate habeas corpus—without the need to
exhaust administrative remedies—for a person arrested as
an illegal alien, Congress would never be able (in the light
of sad experience) to revise that disposition. The Suspen-
see ibid. There is nothing “implici[t]” whatsoever about Chief Justice
Marshall’s categorical statement that “the power to award the writ [of
habeas corpus] by any of the courts of the United States, must be given
by written law,” 4 Cranch, at 94. See also ibid., quoted supra, at 340
(“[T]he power of taking cognizance of any question between individuals,
or between the government and individuals . . . must be given by written
law”). If, as the Court concedes, “the writ could not be suspended,” ante,
at 304, n. 24, within the meaning of the Suspension Clause until Congress
affirmatively provided for habeas by statute, then surely Congress may
subsequently alter what it had initially provided for, lest the Clause be-
come a one-way ratchet, see infra this page and 342. The Court’s position
that a permanent repeal of habeas jurisdiction is unthinkable (and hence
a violation of the Suspension Clause) is simply incompatible with its (and
Marshall’s) belief that a failure to confer habeas jurisdiction is not
unthinkable.

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342 INS v. ST. CYR
Scalia, J., dissenting
sion Clause, in other words, would be a one-way ratchet
that enshrines in the Constitution every grant of habeas
jurisdiction. This is, as I say, too absurd to be contem-
plated, and I shall contemplate it no further.
The other alternative is that the Suspension Clause guar-
antees the common-law right of habeas corpus, as it was
understood when the Constitution was ratified. There is no
doubt whatever that this did not include the right to obtain
discretionary release. The Court notes with apparent cre-
dulity respondent’s contention “that there is historical evi-
dence of the writ issuing to redress the improper exercise of
official discretion,” ante, at 303–304. The only framing-era
or earlier cases it alludes to in support of that contention,
see ante, at 303, n. 23, referred to ante, at 303–304, establish
no such thing. In Ex parte Boggin, 13 East 549, 104 Eng.
Rep. 484 (K. B. 1811), the court did not even bother calling
for a response from the custodian, where the applicant failed
to show that he was statutorily exempt from impressment
under any statute then in force. In Chalacombe’s Case, re-
ported in a footnote in Ex parte Boggin, the court did “let
the writ go”—i. e., called for a response from the Admiralty
to Chalacombe’s petition—even though counsel for the Admi-
ralty had argued that the Admiralty’s general policy of not
impressing “seafaring persons of [Chalacombe’s] description”
was “a matter of grace and favour, [and not] of right.” But
the court never decided that it had authority to grant the
relief requested (since the Admiralty promptly discharged
Chalacombe of its own accord); in fact, it expressed doubt
whether it had that authority. See 13 East, at 550, n. (b),
104 Eng. Rep., at 484, n. (a) 2 (Lord Ellenborough, C. J.)
(“[C]onsidering it merely as a question of discretion, is it not
more fit that this should stand over for the consideration of
the Admiralty, to whom the matter ought to be disclosed?”).
And in Hollingshead’s Case, 1 Salkeld 351, 91 Eng. Rep. 307
(K. B. 1702), the “warrant of commitment” issued by the
“commissioners of bankrupt” was “held naught,” since it au-

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343 Cite as: 533 U. S. 289 (2001)
Scalia, J., dissenting
thorized the bankrupt’s continued detention by the commis-
sioners until “otherwise discharged by due course of law,”
whereas the statute authorized commitment only “till [the
bankrupt] submit himself to be examined by the commis-
sioners.” (Emphasis deleted.) There is nothing pertaining
to executive discretion here.
All the other framing-era or earlier cases cited in the
Court’s opinion—indeed, all the later Supreme Court cases
until United States ex rel. Accardi v. Shaughnessy, 347 U. S.
260, in 1954—provide habeas relief from executive detention
only when the custodian had no legal authority to detain.
See 3 J. Story, Commentaries on the Constitution of the
United States § 1333, p. 206 (1833) (the writ lies to ascertain
whether a “sufficient ground of detention appears”). The
fact is that, far from forming a traditional basis for issuance
of the writ of habeas corpus, the whole “concept of ‘dis-
cretion’ was not well developed at common law,” Hafetz,
The Untold Story of Noncriminal Habeas Corpus and the
1996 Immigration Acts, 107 Yale L. J. 2509, 2534 (1998),
quoted in Brief for Respondent in Calcano-Martinez v. INS,
O. T. 2000, No. 00–1011, p. 37. An exhaustive search of cases
antedating the Suspension Clause discloses few instances in
which courts even discussed the concept of executive dis-
cretion; and on the rare occasions when they did, they
simply confirmed what seems obvious from the paucity of
such discussions—namely, that courts understood executive
discretion as lying entirely beyond the judicial ken. See,
e. g., Chalacombe’s Case, supra, at 342. That is precisely
what one would expect, since even the executive’s evalua-
tion of the facts—a duty that was a good deal more than
discretionary—was not subject to review on habeas. Both
in this country, until passage of the Habeas Corpus Act of
1867, and in England, the longstanding rule had been that
the truth of the custodian’s return could not be controverted.
See, e. g., Opinion on the Writ of Habeas Corpus, Wilm. 77,
107, 97 Eng. Rep. 29, 43 (H. L. 1758); Note, Developments in

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344 INS v. ST. CYR
Scalia, J., dissenting
the Law—Federal Habeas Corpus, 83 Harv. L. Rev. 1038,
1113–1114, and nn. 9–11 (1970) (quoting Act of Feb. 5, 1867,
ch. 28, § 1, 14 Stat. 385); Oaks, Legal History in the High
Court—Habeas Corpus, 64 Mich. L. Rev. 451, 453 (1966).
And, of course, going beyond inquiry into the legal authority
of the executive to detain would have been utterly incompat-
ible with the well-established limitation upon habeas relief
for a convicted prisoner: “[O]nce a person had been convicted
by a superior court of general jurisdiction, a court disposing
of a habeas corpus petition could not go behind the conviction
for any purpose other than to verify the formal jurisdiction
of the committing court.” Id., at 468, quoted in Swain v.
Pressley, 430 U. S. 372, 384–385 (1977) (Burger, C. J., concur-
ring in part and concurring in judgment).
In sum, there is no authority whatever for the proposition
that, at the time the Suspension Clause was ratified—or, for
that matter, even for a century and a half thereafter—habeas
corpus relief was available to compel the Executive’s alleg-
edly wrongful refusal to exercise discretion. The striking
proof of that proposition is that when, in 1954, the Warren
Court held that the Attorney General’s alleged refusal to
exercise his discretion under the Immigration Act of 1917
could be reviewed on habeas, see United States ex rel.
Accardi v. Shaughnessy, supra, it did so without citation of
any supporting authority, and over the dissent of Justice
Jackson, joined by three other Justices, who wrote:
“Of course, it may be thought that it would be better
government if even executive acts of grace were subject
to judicial review. But the process of the Court seems
adapted only to the determination of legal rights, and
here the decision is thrusting upon the courts the task of
reviewing a discretionary and purely executive function.
Habeas corpus, like the currency, can be debased by
over-issue quite as certainly as by too niggardly use.
We would . . . leave the responsibility for suspension or

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345 Cite as: 533 U. S. 289 (2001)
Scalia, J., dissenting
execution of this deportation squarely on the Attorney
General, where Congress has put it.” Id., at 271.
III
Given the insubstantiality of the due process and Arti-
cle III arguments against barring judicial review of re-
spondent’s claim (the Court does not even bother to mention
them, and the Court of Appeals barely acknowledges them),
I will address them only briefly.
The Due Process Clause does not “[r]equir[e] [j]udicial
[d]etermination [o]f ” respondent’s claim, Brief for Petitioners
in Calcano-Martinez v. INS, O. T. 2000, No. 00–1011, p. 34.
Respondent has no legal entitlement to suspension of de-
portation, no matter how appealing his case. “[T]he Attor-
ney General’s suspension of deportation [is] “an act of grace”
which is accorded pursuant to her ‘unfettered discretion,’
Jay v. Boyd, 351 U. S. 345, 354 (1956) . . . , and [can be likened,
as Judge Learned Hand observed,] to “a judge’s power to
suspend the execution of a sentence, or the President’s
to pardon a convict,” 351 U. S., at 354, n. 16 . . . .” INS v.
Yueh-Shaio Yang, 519 U. S. 26, 30 (1996). The furthest our
cases have gone in imposing due process requirements upon
analogous exercises of Executive discretion is the following.
(1) We have required “minimal procedural safeguards” for
death-penalty clemency proceedings, to prevent them from
becoming so capricious as to involve “a state official flipp[ing]
a coin to determine whether to grant clemency,” Ohio Adult
Parole Authority v. Woodard, 523 U. S. 272, 289 (1998)
(O’Connor, J., concurring in part and concurring in judg-
ment). Even assuming that this holding is not part of our
“death-is-different” jurisprudence, Shafer v. South Carolina,
532 U. S. 36, 55 (2001) (Scalia, J., dissenting) (citation
omitted), respondent here is not complaining about the ab-
sence of procedural safeguards; he disagrees with the Attor-
ney General’s judgment on a point of law. (2) We have rec-
ognized the existence of a due process liberty interest when

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346 INS v. ST. CYR
Scalia, J., dissenting
a State’s statutory parole procedures prescribe that a pris-
oner “shall” be paroled if certain conditions are satisfied, see
Board of Pardons v. Allen, 482 U. S. 369, 370–371, 381 (1987);
Greenholtz v. Inmates of Neb. Penal and Correctional Com-
plex, 442 U. S. 1, 12 (1979). There is no such statutory
entitlement to suspension of deportation, no matter what
the facts. Moreover, in neither Woodard, nor Allen, nor
Greenholtz did we intimate that the Due Process Clause
conferred jurisdiction of its own force, without benefit of
statutory authorization. All three cases were brought
under 42 U. S. C. § 1983.
Article III, § 1’s investment of the “judicial Power of the
United States” in the federal courts does not prevent Con-
gress from committing the adjudication of respondent’s legal
claim wholly to “non-Article III federal adjudicative bodies,”
Brief for Petitioners in Calcano-Martinez v. INS, O. T. 2000,
No. 00–1011, at 38. The notion that Article III requires
every Executive determination, on a question of law or of
fact, to be subject to judicial review has no support in our
jurisprudence. Were it correct, the doctrine of sovereign
immunity would not exist, and the APA’s general permission
of suits challenging administrative action, see 5 U. S. C. § 702,
would have been superfluous. Of its own force, Article III
does no more than commit to the courts matters that are
“the stuff of the traditional actions at common law tried
by the courts at Westminster in 1789,” Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 90
(1982) (Rehnquist, J., concurring in judgment)—which (as
I have discussed earlier) did not include supervision of dis-
cretionary Executive action.
* * *
The Court has created a version of IIRIRA that is not only
unrecognizable to its framers (or to anyone who can read)
but gives the statutory scheme precisely the opposite of
its intended effect, affording criminal aliens more opportu-

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347 Cite as: 533 U. S. 289 (2001)
Scalia, J., dissenting
nities for delay-inducing judicial review than others have, or
even than criminal aliens had prior to the enactment of this
legislation. Because § 2241’s exclusion of judicial review is
unmistakably clear, and unquestionably constitutional, both
this Court and the courts below were without power to
entertain respondent’s claims. I would set aside the judg-
ment of the court below and remand with instructions
to have the District Court dismiss for want of jurisdiction.
I respectfully dissent from the judgment of the Court.

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348 OCTOBER TERM, 2000
Syllabus
CALCANO-MARTINEZ et al. v. IMMIGRATION AND
NATURALIZATION SERVICE
certiorari to the united states court of appeals for
the second circuit
No. 00–1011. Argued April 24, 2001—Decided June 25, 2001
Petitioners are lawful permanent United States residents subject to ad-
ministratively final removal orders because they were convicted of ag-
gravated felonies. Each filed a petition for review in the Second Cir-
cuit pursuant to 8 U. S. C. § 1252(a)(1) and a habeas corpus petition in
the District Court pursuant to 28 U. S. C. § 2241 in order to challenge
the Board of Immigration Appeals’ determination that, as a matter
of law, they were ineligible to apply for a discretionary waiver of de-
portation under former § 212(c) of the Immigration and Nationality Act.
The Second Circuit dismissed their petitions for lack of jurisdiction,
holding that they could nevertheless pursue their claims in a § 2241
action in district court.
Held: The Second Circuit lacked jurisdiction to hear the petitions for
direct review, but petitioners can proceed with their habeas petitions
if they wish to obtain relief. The Illegal Immigration Reform and Im-
migrant Responsibility Act of 1996 expressly precludes courts of appeals
from exercising jurisdiction to review a final removal order against an
alien removable by reason of a conviction for, inter alia, an aggravated
felony. 8 U. S. C. § 1252(a)(2)(C). This plain language explicitly strips
the courts of appeals of the ability to hear petitioners’ claims on direct
review. However, because Congress has not spoken with sufficient clar-
ity to strip the district courts of jurisdiction to hear habeas petitions
raising identical claims, see INS v. St. Cyr, ante, at 314, petitioners may
pursue their claims in a § 2241 action. Pp. 350–352.
232 F. 3d 328, affirmed.
Stevens, J., delivered the opinion of the Court, in which Kennedy,
Souter, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed a dis-
senting opinion, post, p. 352. Scalia, J., filed a dissenting opinion, in
which Rehnquist, C. J., and Thomas, J., joined, post, p. 352.
Lucas Guttentag argued the cause for petitioners. With
him on the briefs were Lee Gelernt, Steven R. Shapiro,
Jayashri Srikantiah, Kerry W. Bretz, Jules E. Coven, Alan
Michael Strauss, and Paul A. Engelmayer.

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349 Cite as: 533 U. S. 348 (2001)
Opinion of the Court
Deputy Solicitor General Kneedler argued the cause for
respondent. With him on the brief were Acting Solicitor
General Underwood, Acting Assistant Attorney General
Schiffer, Paul R. Q. Wolfson, Donald E. Keener, William J.
Howard, Ernesto H. Molina, and James A. O’Brien III.*
Justice Stevens delivered the opinion of the Court.
Deboris Calcano-Martinez, Sergio Madrid, and Fazila
Khan are all lawful permanent residents of the United States
subject to administratively final orders of removal. They
conceded that they are deportable based upon their past
criminal convictions, but each filed both a petition for review
in the Second Circuit pursuant to 8 U. S. C. § 1252(a)(1) (1994
ed., Supp. V) and a habeas corpus petition in the District
Court pursuant to 28 U. S. C. § 2241 in order to challenge
the Board of Immigration Appeals’ determination that, as
a matter of law, petitioners were ineligible to apply for a
discretionary waiver of deportation under former § 212(c) of
the Immigration and Nationality Act, 66 Stat. 182, 8 U. S. C.
§ 1182(c) (1994 ed.). Their petitions for review were consoli-
dated in the Court of Appeals, which subsequently dismissed
the petitions for lack of jurisdiction, holding that petitioners
could nevertheless pursue their constitutional and statutory
claims in a district court habeas action brought pursuant to
28 U. S. C. § 2241. 232 F. 3d 328 (CA2 2000). We granted
certiorari in this case, 531 U. S. 1108 (2001), and in INS
v. St. Cyr, 531 U. S. 1107 (2001), in order to comprehen-
sively consider whether aliens in the petitioners’ posi-
tion may seek relief in the Court of Appeals (pursuant to 8
U. S. C. § 1252(a)(1)); in the district court (pursuant to 28
U. S. C. § 2241); or not at all. For the reasons stated below
and in our opinion in INS v. St. Cyr, ante, p. 289, we agree
with the Court of Appeals that it lacks jurisdiction to hear
*Martha W. Barnett, Jeffrey L. Bleich, Gerald Neuman, and Kelly M.
Klaus filed a brief for the American Bar Association as amicus curiae.

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350 CALCANO-MARTINEZ v. INS
Opinion of the Court
the petitions for direct review at issue in this case and that
petitioners must, therefore, proceed with their petitions for
habeas corpus if they wish to obtain relief.
As part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546,
Congress adopted new provisions governing the judicial re-
view of immigration orders. See 8 U. S. C. § 1252 (1994 ed.,
Supp. V) (codifying these procedures). Like the prior stat-
ute, the new provision vests the courts of appeals with the
authority to consider petitions challenging “final orders”
commanding the “removal” of aliens from the United States.
§ 1252(a)(1).1 However, unlike the previous provisions, the
new statute expressly precludes the courts of appeals from
exercising “jurisdiction to review any final order of removal
against any alien who is removable by reason of ” a convic-
tion for certain criminal offenses, including any aggravated
felony. § 1252(a)(2)(C).2
1 An additional difference between the old and the new statute with
regard to petitions for review is one of nomenclature. In keeping with
a statute-wide change in terminology, the new provision refers to orders
of “removal” rather than orders of “deportation” or “exclusion.” Com-
pare 8 U. S. C. § 1252(a)(1) (1994 ed., Supp. V), with § 1105a (1994 ed.).
2 The scope of this preclusion is not entirely clear. Though the text of
the provision is quite broad, it is not without its ambiguities. Throughout
this litigation, the Government has conceded that the courts of appeals
have the power to hear petitions challenging the factual determinations
thought to trigger the jurisdiction-stripping provision (such as whether
an individual is an alien and whether he or she has been convicted of an
“aggravated felony” within the meaning of the statute). See Brief for
Respondent 22–23. In addition, the Government has also conceded that
the courts of appeals retain jurisdiction to review “substantial con-
stitutional challenges” raised by aliens who come within the strictures
of § 1252(a)(2)(C). See id., at 23–24. As the petitions in this case do
not raise any of these types of issues, we need not address this point
further. Nonetheless, it remains instructive that the Government ac-
knowledges that background principles of statutory construction and
constitutional concerns must be considered in determining the scope of
IIRIRA’s jurisdiction-stripping provisions.

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351 Cite as: 533 U. S. 348 (2001)
Opinion of the Court
As petitioners in this case were convicted of “aggravated
felonies” within the meaning of the relevant statutes,3 the
plain language of § 1252(a)(2)(C) fairly explicitly strips the
courts of appeals of jurisdiction to hear their claims on peti-
tions for direct review. Without much discussion, the Court
of Appeals so held. 232 F. 3d, at 342–343.
Before this Court, petitioners primarily argue that con-
stitutional considerations and background principles of stat-
utory interpretation require that they be afforded some
forum for the adjudication of the merits of their claims.
They devote the bulk of their briefs to arguing that the
Court of Appeals—motivated by these concerns—properly
interpreted IIRIRA’s jurisdiction-stripping provision not
to preclude aliens such as petitioners from pursuing habeas
relief pursuant to 28 U. S. C. § 2241. Brief for Petitioners
12–42, 44–49. In the alternative, they argue that we might
construe the same provisions as stripping jurisdiction from
the courts of appeals over only some matters, leaving in
place their jurisdiction to directly review petitions raising
claims previously cognizable under § 2241. Id., at 42–44.
We agree with petitioners that leaving aliens without a
forum for adjudicating claims such as those raised in this
case would raise serious constitutional questions. We also
agree with petitioners—and the Court of Appeals—that
these concerns can best be alleviated by construing the
jurisdiction-stripping provisions of that statute not to pre-
clude aliens such as petitioners from pursuing habeas relief
pursuant to § 2241. See St. Cyr, ante, at 314.
Finding no support in the text or history of § 1252 for con-
cluding that the courts of appeals retain jurisdiction to hear
petitions such as those brought in this case, but concluding
3 All three petitioners were convicted of controlled substance offenses
for which they served between four months and four years in prison.
Each concedes that his or her crime is an “aggravated felony” as defined
in 8 U. S. C. § 1101(a)(43), which renders him or her removable pursuant
to § 1227(a)(2)(A)(iii).

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352 CALCANO-MARTINEZ v. INS
Scalia, J., dissenting
that Congress has not spoken with sufficient clarity to strip
the district courts of jurisdiction to hear habeas petitions
raising identical claims, we affirm the judgment of the Court
of Appeals in all particulars.
It is so ordered.
Justice O’Connor, dissenting.
For the reasons stated in my dissenting opinion in the
companion case of INS v. St. Cyr, ante, p. 326, I agree with
Justice Scalia’s proposed disposition of the instant case.
Justice Scalia, with whom The Chief Justice and
Justice Thomas join, dissenting.
For the reasons stated in my dissenting opinion in the com-
panion case of INS v. St. Cyr, ante, p. 326, I would vacate the
judgment of the court below and remand with instructions
to dismiss for want of jurisdiction, with prejudice to petition-
ers Calcano-Martinez’s and Madrid’s refiling in the District
Court.